1-409  E.  OHia.STb:v 
CHICAGO.  ILL. 


THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


't.> 


Nf*^l  ^.^-^- 


A  TREATISE 


ON  THE 


LAW  OF  BAILMENTS 
AND  CARRIERS 


BY 
WILLIAM  F.  ELLIOTT 

AUTHOR  OF 
"RAILROADS,"  "CONTRACTS" 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 

PUBLISHERS 


Copyright  1914 

BY 

THE  BOBBS-MERRILL  COMPANY 


T 


TABLE  OF  CONTENTS 


CHAPTER  I. 


DEFINITIONS    AND    GENERAL    PRINCIPLES. 

Section  Page 

1.  Definition   of  bailment 1 

2.  Character  of  the  relation 2 

3.  Origin  of  the  law  of  bailment 3 

4.  Classification   of  bailments 4 

5.  The  consideration  which  supix)rts  the  contract 5 

6.  Principles  common  to  all  bailments  and  subject-matter  of  a  bail- 
ment      6 

7.  Parties  to  a   bailment 6 

8.  Delivery  and  acceptance  of  the  property 7 

9.  Possession  of  the  property 0 

10.  Bailor's  title  and  rights 9 

11.  Bailee's  estoppel  to  deny  bailor's  title 10 

12.  Bailee's  rights  against  third  parties 11 

13.  Bailee's  rights  to  use  of  property — Conversion 12 

14.  Expenditures  upon  property  bailed 13- 

15.  The  bailor  must  not  expose  the  bailee  to  danger 13 

16.  Care  to  be  talien  of  property  bailed 14 

17.  Bailee  must  act  in  good  faith IG 

18.  Effect  of  special  contract 17 

19.  Compound  or  mixed  bailment 17 

20.  Redelivery    17 

21.  Termination    of    relation IS 

22.  Form  of  action  and  burden  of  proof 20 

23.  Distinction  between  bailment  and  debt,  sale,  or  gift 21 


CHAPTER  n. 


GRATUITOUS   BAILMENTS. 

24.  For  benefit  of  bailor — Defined  and  distinguished 24 

25.  Mandates    25 

26.  Deposits    25 

27.  Delivery   and   acceptance 26 

28.  Use  of  the  property  and  expenses 27 

29.  Bailee's  duty  to  perform  bailment  contract 27 

30.  Care  to  be  used  by  bailee  in  accomplishing  the  bailment  purpose —  28 

iii 


^">OaCHI  £? 


IV  TABLE  OF  CONTENTS. 

Section  Page 

31.  Effect  of  failure  to  obey  instructions,  or  to  give  special  care  with 
notice  that  such  is  necessary 30 

32.  Bailee's  rights  against  bailor  or  third  parties 31 

33.  The  finder  of  lost  property 32 

34.  Special    bank    deposits 32 

35.  Termination  of  relation  and  redelivery 33 

36.  For  benefit  of  bailee— Gratuitous  loans — The  commodate 34 

37.  Creation  of  the  relation 35 

38.  Bailee's  rights  and  obligations 35 

39.  Bailor's   rights  and  duties 36 

40.  The  care  demanded  of  the  bailee 37 

41.  Redelivery    38 


CHAPTER  III. 


PLEDGES. 


42.  What  is  a  pledge 39 

43.  Pledge  distinguished  from  chattel  mortgage  and  lien 40 

44.  Essentials  of  the  relation 41 

45.  What  debt  may  be  secured 41 

46.  What  may  be  pledged 42 

47.  Title  necessary  to  pledge  goods 43 

48.  Delivery    in    pledge 45 

49.  Constructive    delivery 47 

50.  Certain  kinds  of  constructive  delivery  not  good  as  to  creditors 47 

51.  Delivery  of  negotiable  instruments  in  pledge 49 

52.  Pledge  of  coi"porate  stock 50 

53.  Delivery  of  bills  of  lading,  and  other  quasi-negotiable  papers 52 

54.  Pledgee's   right  to   possession  of  pledge 53 

55.  Pledgee's  right  to  use — Expenses  and  profits 54 

56.  Care  demanded  of  pledgee — Collection  of  negotiable  paper 55 

57.  Pledgee's  right  to  assign  pledge 56 

58.  Conversion  by  pledgee 56 

59  The  pledgor's  warranty  of  title  to  the  pledge 57 

60.  Pledgor's  right  to  assign  subject  to  pledge 58 

61.  Pledgor's  right  to  sue  third  parties 58 

62.  The  pledgor's  right  to  redeem 59 

63.  Termination  of  the  relation  by  the  pledgor 60 

64.  Termination  by  consent  of  parties  or  operation  of  law 60 

65.  Redelivery    62 

66.  Pledgee's  remedies  upon  pledgor's  default 62 

67.  Suit  on  the  debt 62 

68.  Common-law  sale  of  the  pledge 63 

69.  Sale  in  equity 64 

70.  Sale   under   statute 65 

71.  Sale  under  the  provisions  of  a  special  contract 65 

72.  Further  of  pledgee's  rights  in  case  of  default — Where  pledge  is 
chosen  in  action  or  corporate  stock 66 

73.  Pledgor's  rights  in  case  of  default,  or  in  case  of  pledgee's  wrong.  67 

74.  Rights  of  purchaser  at  pledgee's  sale 68 


TABLE   OF   CONTENTS. 


CHAPTER  IV. 


CONTRACTS  OF   HIRING. 

Section  Pace 

75.  Contracts   of   hiring GO 

76.  Contracts  of  hiring  the  use  of  a  thing 70 

77.  Creation  of  the  relation 71 

78.  Bailor's  duties  and  rights — Warranty  of  title  and  disclosure  of 
defects 71 

79.  Bailee's  right  to  possession  and  use 72 

80.  Care  demanded  of  hirer — Expenses 73 

81.  Bailee's  misuse  and  conversion 75 

82.  Third   persons   and   subusers 78 

83.  Assignability  of  bailee's  rights 80 

84.  Special   classes  of  hiring  the  use  of  a   thing — Property  for  ex- 
hibition      80 

85.  Special  classes — Storekeeper  or  bath-house  keeper  as  hired  bailee 

of  personal  belongings  of  customer  or  patron SI 

86.  Termination  of  the  contract  of  hiring — Redelivery  and  recompense  82 


CHAPTER  V. 


CONTRACTS  OF  HIRING  SERVICES  ABOUT  A  THING. 

87.  Contracts  of  hiring  services  about  a  thing — Operis  bailments S6 

88.  Creation  of  the  relation 87 

89.  Title    and    accession — Bailee's    special    property 87 

90.  Diligence  and  skill  required  of  bailee 89 

91.  Expenses  and  insurance 92 

92.  Compensation — Where  work  incomplete 92 

93.  Compensation — Where    vs^ork    completed,    but    not    according    to 
contract    94 

94.  Bailee's  lien  for  amount  of  compensation 95 


CHAPTER  VI. 


CONTRACTS   OF    HIRING THE   CUSTODY   OF   A    THING. 

95.  Bailments  of  hired  custody 99 

96.  Warehousemen   defined — Public    and    private   warehousemen 99 

97.  Delivery  and  acceptance — Counuencement  of  liability 100 

98.  Warehouse   receipts — Their   etfect  and   assignability 101 

99.  Warehouse  receipt  as  a  contract — Its  effect  in  limiting  liability 103 

100.  Duties    and    liabilities    of   warehouseman 105 

101.  Further  of  the  warehousing  relationship — Warehouseman's  lien —  107 

102.  Redelivery — Presumption  in  case  of  injury  to  goods — Termina- 
tion of  relation 108 

103.  Wharfingers   109 


VI  TABLE   OF  CONTENTS. 

Section  Page 

104.  Factors  and  commission  merchants 109 

105.  Safe-deposit  companies 110 

106.  Public    officers    as    bailees 111 

107.  Other  bailments  for  custody — Agisters  and  livery  stable  keepers-  112 


CHAPTER  VII. 


INNKEEPERS  AND  THE  POST-OFFICE. 

108.  Innkeepers  as  extraordinary  bailees  for  custody 113 

109.  Who  are  innkeepers 114 

110.  Who  is  a  guest — Transient  character  of  the  relationship 116 

111.  A  guest  must  receive  accommodations  of  the  inn  as  such 118 

112.  Innkeeper's  duty  to  receive  all  comers 120 

113.  Inkeeper's  liability  for  the  goods  of  his  guests 121 

114.  For  what  goods  Innkeeper  is  liable 12.3 

11.5.     Limitation   of   liability 124 

116.  Innkeeper's  liability  for  the  safety  and  protection  of  his  guests_  126 

117.  Innkeeper's  lien 127 

118.  Termination  of  relation 128 

119.  Innkeeper  as  an  ordinary  bailee 129 

120.  The  post-office  department  as  bailee 130 


CHAPTER  VIII. 

CARRIERS  OF  GOODS — SUBJECT  DEFINED  AND  DISTINGUISHED. 

121.  Contract  of  carriage  a  bailment 132 

122.  Common    carrier   defined 133 

123.  Private  carriers   134 

124.  Distinctions  between  public  and  private  carriers 1.34 

125.  Further  of  distinctions — Exceptions  to  rules 136 

126.  Further  of  elements  necessary  to  constitute  common  carrier 136 

127.  Kinds  of  common  carriers  with   reference   to   means  of   trans- 
portation   13S 

128.  Who  are  not  common  carriers 140 

129.  Common  carrier's  extraordinary  liability  as  bailee 141 

CHAPTER  IX. 

CREATION  OF  RELATION  OF  COMMON  CARRIER,  AND  BEGINNING  OF 

LIABILITY. 

130.  Duty  to  receive  goods  offered 143 

131.  Time   of  delivery   to   carrier 143 

132.  Place  of  delivery 145 


TABLE  OF   CONTENTS.  vii 

Section  Page 

133.  By   whom  delivery  must  be  made 14n 

134.  To  wliom  delivery  must  be  made 140 

135.  Coustructive    delivery 147 

136.  Completion  of  delivery  and  acceptance  by  cai-rier 148 

137.  Notice  to  carrier  of  delivery 149 

138.  Delivery  to  connecting  carrier 151 

139.  Carrier's  duty  to  accept 151 


CHAPTER  X. 


BILLS  OF  LADING. 

140.  What  a  bill  of  lading  is 154 

141.  Dual  capacity  of  bill  of  lading  us  receipt  and  contract 155 

142.  Authority  to  give  bill  of  lading 155 

143.  Operation  of  bill  of  lading  as  receipt 156 

144  Recitals  in  bill  of  lading  as  to  condition  or  character  of  goods 

received    1.57 

145.     Bill  of  lading  as  a  contract 158 

14G.     Conflict  between  bill  of  lading  and  parol  contract 1.50 

147.  Mutual  assent  160 

148.  Transfer  of  title  to  goods  by  transfer  of  bill  of  lading 161 

149.  Bill  of  lading  as  evidence  of  title 163 

150.  Bill  of  lading  with  draft  attached 165 


CHAPTER  XI. 


DUTIES  AND  LIABILITIES  OF   CARRIER. 

151.  Duty   to  carry  for  all 167 

152.  In  general  of  duties  implied  in  carrier's  contract 167 

153.  Duty  to  furnish  sufficient  accommodations 16S 

154.  Duty  to  furnish  suitable  accommodations 170 

155.  Duty  to  furnish  cars  suitable  to  particular  classes  of  freight 171 

156.  Duty  to  show  no  preference 172 

157.  Duty   as   to   manner   of  carriage 174 

158.  Duty  to  obey  shipper's  directions 175 

159.  Carrier  must  choose  safest  route  where  more  than  one 176 

160.  Special  duties  arising  under  special  contract — Effect  of  deviation 
from  contract 177 

101.  Construction  of  clauses  permitting  delay  or  deviation 177 

162.  Contracts   to   carry   within   certain    time 178 

163.  Care  of  goods  in  emergencies 179 

164.  Carrier's  liability   for  loss 181 

165.  Duration  of  extraordinary  liability 181 

166.  Extent  of  carrier's  liability 181 

167.  What  is  considered  act  of  God 182 

168.  Carrier's  exposure  to  danger — Deviation  from  route 184 

109.  Where  accident  would  not  have  happened  save  for  delaj- 184 

170.  Burden  of  proof 186 

171.  What  may  be  act  of  public  enemy 1S6 


Vlll  TABLE  OF  CONTENTS. 

Section  Page 

172.  What  is  meant  by  loss  caused  by  public  authority 187 

173.  Loss  caused  by  act  of  shipper 188 

174.  Loss  caused  by  inherent  nature  of  the  goods 188 

175.  Statutory  exceptions  to  carrier's  liability 189 

176.  Liability    for   delay 189 

177.  Special  cii'cuni stances  may  increase  duty  not  to  delay 190 

178.  Excuses  for  delay 191 

179.  Duty  to  delay  under  some  circumstances 192 


CHAPTER  XII. 


LIMITATION    OF   LIABILITY    BY    CONTRACT. 

180.  In  general   193 

181.  Limitation  of  liability  by  notice 1!J4 

182.  Essentials  of  the  contract— lijo 

183.  What  is  a  special  contract lUO 

184.  Contract  may   be   in  parol 11)7 

185.  Notices   informing    of    carrier's   regulations 1!(8 

186.  To  be  effectual  the  terms  of  limitation  must  be  part  of  contract.  198 

187.  Receipt  must  be  delivered  when  goods  accepted 199 

188.  Character   of  limitations 200 

189.  Limitation  of  amount  of  liability 201 

190.  Effect  in  case  of  abandonment  or  completion  of  contract 204 

191.  Limitation  of  time  in  which  claim  for  loss  must  be  made 205 

192.  When  limitation  does  not  apply — Waiver 207 

193.  Condition  precedent  and  burden  of  proof 208 

194.  Effect  of  contract  limitations  in  case  of  negligence 209 

195.  Authority  of  shipper's  or  carrier's  agent  to  limit  liability 210 

196.  Construction  of  contracts  limiting  liability 211 

197.  Construction  of  exceptions  found  in  bills  of  water  carrier's 214 

198.  Act  of  carrier  which  prevents  talving  advantage  of  conti'act  limita- 

tions— Deviation  or  departure  from  contract 215 

199.  When   connecting   carrier   obtains   benefit   of  contract   made   by 
initial  carrier 216 

200.  What   law   governs   construction   of   contract   limiting    carrier's 
liability    216 

201.  Consideration  for  contmct  limiting  liability 218 


CHAPTER  XIII. 


THE    CARRIERS    RIGHTS. 


202.  Compensation    220 

203.  On  what  goods  entitled  to  freight 221 

204.  Amount  of  compensation 222 

205.  Shippers  rights  if  charges  unreasonable 222 

206.  Carrier's  rights  in  case  of  fraud  by  shipper 222 

207.  Who  must  pay  the  freight 223 

208.  Method  of  calculating  compensation 224 


TABLE    OF   CONTENTS.  ix 

Section  Page 

2U'J.  Freight  pro   rata   itinoris 224 

21U.  Method  of  calculatiii.t,'  freight  pro  rata  itneris i:2(; 

211.  Transhiiiiiient  at  rate  different  from  origiual  rate  agreed  iii)on__  227 

212.  When  carrier's  right  to  sue  iiccrues 227 

213.  Deuuurage   22S 

214.  Construction  of  special  clauses  in  demurrage  contracts 22!) 

215.  Demurrage  where  contract   is  silent  as  to   time  of  unloading.,  230 
21G.  Cesser   clause  and   lien   for  demurrage 232 

217.  Demurrage  as  applied  to  railroads 232 

218.  Charges  for   special   services 233 

219.  Discrimination    in    freight    charges 234 

220.  Carrier's  special  property  in  goods,  and  general  rights  as  bailee-  235 

221.  When  subrogated  to  owner's  rights 2.3G 

222.  Eight    to    insure 230 

223.  Authority   to    sell 237 

224.  Right  to  know  character  of  goods  offered  for  carriage 23S 

225.  Shippei-'s  failure  to  deliver 230 

226.  The  carrier's  lieu — 239 


CHAPTER  XIV. 


TERMINATION   OF   THE   RELATION    OF    CARRIER. 

227.  Termination  of  the  relation  of  carrier 244 

228.  Delivery  to  right  person 245 

229.  Place  of  delivery 248 

230.  Where  goods  are  shipped  to  a  certain  place 249 

231.  Delivery  as  warehouseman 249 

232.  Delivery    by    water    carriers 250 

233.  Delivery  by  railroads 253 

234.  Massachusetts  rule   253 

235.  New  Hampshire  rule  254 

236.  New  York  rule 2.55 

237.  Where  notice  unnecessary  or  immaterial 255 

238.  When  liability  as  warehouseman  begins 256 

239.  Liability   as  warehouseman    257 

240.  Delivery  by  express  companies 258 

241.  Further   of  delivery — Notice  to  consignor 258 

242.  Carrying  goods  C.   O.   D.   259 

243.  Consignee's  rights  as  to  C.  O.  D.  shipments 260 

244.  Excuses   for  non-delivery — Seizure   under   legal   process 261 

245.  Stoppage  in  transitu 263 

246.  Receipt  for  delivery 265 

247.  Delivery  to  connecting  carrier  and  liability  of  connecting  carrier 

— In  general   266 

248.  Who  is  a  connecting  carrier 267 

249.  Contract    for   through   carriage ' 26S 

250.  Authority  to  make  through  contract 270 

251.  Which  carrier  is  liable  to  consignee 271 

252.  Comi^ensatiou   of  connecting  carriers 273 

'253.  Delivery  to  conuectiug  carriers— 274 


TABLE   OF  CONTENTS. 


CHAPTER  XV. 


CARRIERS  OF  LIVE  STOCK. 

Section  Page 

254.  Carriers  of  live  stock  in  general 278 

255.  Duty    to   carry 279 

256.  Place  of  reception 279 

257.  Carrier's  duty  as  to  accommodations 280 

258.  Loading  and  unloading 280 

259.  Care  of  the  stock  in  transit 281 

260     Liability  for  loss  or  delay 283 

261.  Special  contract  and  limitation  of  liability 284 

262.  Statutory    regulation    285 

263.  Termination  of  relation  and  delivery 286 

264.  Delivery  to  connecting  carrier 287 


CHAPTER  XVI. 


CARRIERS  OF  PASSENGERS. 

265.  Defined  and  distinguished 289 

266.  Kinds  of  passenger  carriers 290 

267.  Who  must  be  carried 292 

268.  Creation  of  relation — Offer  to  become  passenger : 293 

269.  Acceptance   by   carrier 294 

270.  Duties  of  carrier  toward  passenger 298 

271.  Carrier's  duty  as  to  accommodations 299 

272.  Duty  to  protect  passengers  from  third  persons 302 

273.  Violation    of    carrier's   duties   toward    passenger    considered    as 
breach  of  contract,  or  as  tort 303 

274.  Carrier's  rules  and  regulations 304 

275.  Ejection    for    failure    to   comply    with    regulations,    or   because 

of  faulty  ticket 305 

276.  Carrier's  right  to  compensation 307 

277.  Ticket  as  a  contract 308 

278.  Conclusiveness   of   ticket 310 

279.  Loss  of  ticket 311 

280.  Stop-over  privileges 312 

281.  Time   limitations    314 

282.  Transfer  of  ticket — Nontransferable  tickets 315 

283.  Excursion  tickets  and  round-trip   tickets 316 

284.  Mutilated  tickets — Showing  ticket  before  admission  to  train 317 

285.  Transfers    317 

286.  Limitation  of  liability  by  contract — Where  one  travels  on  pass—     319 

287.  Limitation  of  liability  where  fare  paid 321 

288.  Termination  of  relation  of  carrier  and  passenger 322 

289.  Duty  to  stop  at  stations,  to  announce  stations,  to  conform  with 
schedules,  and  to  give  passenger  proper  instructions 323 

290.  Sleeping  and  parlor-car  companies 325 

2f)l.     Sleeping-car    tickets    326 

292.     Carriers  of  passengers  by  water 327 


TABLE  OF   CONTENTS.  xi 

Section  Page 

293.  Liability  for  baggage  of  passengers 327 

294.  What  is  baggage 329 

295.  Personal  baggage  329 

296.  Merchandise  carried  as  baggage 331 

297.  Limitation  of  liability  for  baggage 333 

298.  Baggage  checks  and  limitation  of  liability  by  ticket 333 

299.  Carrier's  lien  on  baggage . .. 336 


THE  LAW  OF  BAILMENTS 


CHAPTER  I. 


DEFINITIONS  AND  GENERAL  PRINCIPLES. 


§  1.  Definition  of  bailment.  §  13. 

2.  Character  of  the  relation. 

3.  Origin    of    the    law    of    bail-         14. 

ment. 

4.  Classification  of  bailments.  IS. 

5.  The  consideration  which  sup- 

ports the  contract.  16. 

6.  Principles      common     to     all 

bailments   and   subject-mat-         17. 
ter   of   a    bailment.  18. 

7.  Parties  to  a  bailment.  19. 

8.  Delivery    and    acceptance    of         20. 

the    property.  21. 

9.  Possession   of   the   property.  22. 

10.  Bailor's    title   and   rights. 

11.  Bailee's     estoppel     to     deny         23. 

bailor's  title. 

12.  Bailee's    rights   against    third 

parties. 


Bailee's     rights     to     use     of 

property — Conversion. 
Expenditures    upon    property 

bailed. 
The    bailor   must    not    expose 

the  bailee  to  danger. 
Care  to  be  taken  of  property 

bailed. 
Bailee  must  act  in  good  faith. 
Effect  of  special  contract. 
Compound  or  mixed  bailment. 
Redelivery. 

Termination   of    relation. 
Form    of    action    and    burden 

of  proof. 
Distinction  between  bailment, 

and  debt,  sale  or  gift. 


§  1.  Definition  of  bailment. — A  bailment  may  be  de- 
fined as  a  contract  by  which  the  possession  of  personal  property 
is  temporarily  transferred  from  the  owner  to  another  for  the  ac- 
complishment of  some  special  purpose.  There  have  been  almost 
as  many  definitions  of  bailments  as  there  have  been  writers  upon 
the  subject,  but  the  one  just  given  seems  to  be  sufficiently  definite 
and  inclusive  for  the  purposes  of  this  article.^ 


*  Among  other  definitions  of  bail- 
ments are  the  following :  "Bailment 
consists  in  the  rightful  holding  of  a 
chattel  by  some  party,  under  an  obli- 
gation to  return  or  deliver  it  over  (or 
in  certain  instances  hold  as  full 
owner),  after  some  special  purpose 
is  accomplished.''  Schouler  Bailments 


(3d  ed.),  §  2.  "A  bailment  is  a  trans- 
fer of  the  possession  of  personal 
property,  without  a  transfer  of 
ownership,  for  the  accomplishment 
of  a  certain  purpose,  whereupon  the 
property  is  to  be  redelivered  or  deliv- 
ered over  to  a  third  person."  Hale 
Bailments,  §  1.  "A  bailment  is  a  con- 


BAILMENTS. 


§  2.  Character  of  the  relation. — A  l)ailnient  relation  is 
a  contract  relation,  the  contract  often,  however,  being  implied 
and  not  express.  A  bailment  is  a  real  contract,  that  is,  a  con- 
tract based  upon  a  thing  and  the  transfer  of  its  possession,  rather 
than  a  consensual  agreement  or  contract  based  on  mutual  prom- 
ises.^ The  term  "bailment"  comes  from  the  Norman  word 
"bailer",  to  deliver,  and  an  actual,  implied  or  constructive  de- 
livery of  possession  from  the  bailor  of  goods  to  the  bailee 
and  an  actual,  implied  or  constructive  redelivery  of  such  pos- 
session   are    elements    essential    to    every    bailment    contract.^ 


tract  relation  resulting  from  the  deliv- 
ery of  personal  chattels  by  the  owner, 
called  the  bailor,  to  a  second  person, 
called  the  bailee,  for  a  specific  purpose, 
upon  the  accomplishment  of  which  the 
chattels  are  ta  be  dealt  with  accord- 
ing to  the  owner's  direction."  God- 
dard  Bailments,  §  1.  "A  bailment  is 
a  delivery  of  a  thing  in  trust  for 
some  special  object  or  purpose,  and 
upon  a  contract,  expressed  or  im- 
plied, to  conform  to  the  object  or 
purpose  of  the  trust."  Story  Bail- 
ments, §  2.  "Bailment,  from  the 
French  bailler,  to  deliver,  is  de- 
livery of  goods  for  some  particular 
purpose,  or  on  mere  deposit,  upon  a 
contract  express  or  implied,  that, 
after  the  purpose  has  been  per- 
formed, they  shall  be  redelivered  to 
the  bailor,  or  otherwise  dealt  with 
according  to  his  directions,  or  (as 
the  case  may  be),  kept  till  he  re- 
claims them."  Stephens  Com.  (1st 
Am.  ed.)  bk.  2,  pt.  2,  ch.  5,  p.  129.  Of 
these  definitions  probably  that  of  Hale 
is  the  most  satisfactory.  Those  of 
Story,  Goddard  and  Stephens  make 
delivery  to  the  bailee  essential,  yet  in 
case  of  the  finder  of  lost  property,  who 
is  by  all  writers  recognized  as  a  bailee, 
there  can  be  said  to  be  no  delivery, 
save  by  the  merest  fiction  of  law, 
while  in  such  a  case  there  is  certainly 
a  transfer  of  possession  and  a  right- 
ful holding  by  the  bailee.  On  the 
other  hand,  the  definitions  of  Schou- 
ler  and  Hale  perhaps  overemphasize 
the  element  of  redelivery,  for  in 
some  cases  the  bailment  may  be  re- 
tained by  the  bailee  after  the  ac- 
complishment of  the  special  purpose, 
and  in  many  cases  it  is  not  returned 
to  the  owner,  so  that  it  seems  more 


exact  to  say  that  the  property  bailed 
must  be  disposed  of  as  the  owner 
directs  than  to  say  that  it  must  be 
delivered  to  the  owner,  or  to  a  third 
party.  Under  some  of  the  definitions 
of  bailments  the  consignment  of 
goods  to  a  factor  for  sale  would 
not  constitute  a  bailment,  because 
there  is  no  redelivery,  and  there 
has  been  some  conflict  in  the  past 
as  to  whether  this  is  a  bailment, 
but  it  seems  that  in  all  its  es- 
sentials it  is.  The  definition  given 
in  the  text  makes  the  foundation  of 
the  relation  rather  the  severance  of 
possession  from  ownership  than  the 
delivery  or  redelivery,  yet  we  believe 
that  so  far  as  delivery  by  the  owner 
or  redelivery  to  him  is  essential, 
they  are  included  in  the  temporary 
transfer  of  possession  for  some 
special  purpose,  for  such  transfer 
implies  that  the  possession  is  to  re- 
turn to  the  owner  after  the  special 
purpose  has  been  accomplished.  In 
Mr.  Schouler's  later  work,  Bail- 
ments Including  Carriers  (1905), 
§  1,  he  says  that  "bailment  may  be 
said  in  a  broad  sense  to  consist  in 
rightful  possession  of  a  chattel  sev- 
ered from  its  ownership,"  and  this  is 
a  very  comprehensive  and  satisfactory 
definition. 

^  Street  on  Foundations  of  Legal 
Liability,  vol.  2,  ch.  1,  p.  1,  et  seq., 
ch.  26,  p.  251.  et  seq. 

'  Schouler  Bailments  (3d  ed.),  §  1 ; 
Van  Zile  Bailments  (2d  ed.),  §  3; 
Goddard  Bailments,  §  11;  Hale 
Bailments,  p.  .30.  See  Bates  v.  Big- 
by.  123  Ga.  727,  51  S.  E.  717;  North- 
cutt  V.  State,  60  Tex.  Cr.  259,  131  S. 
W.    1128. 


DEFINITIONS   AND    PRINCIPLES.  3 

Only  personal  property  can  be  the  subject  of  a  bailment, 
for  actual  manual  possession  of  real  property  cannot  be  de- 
livered, and  under  the  civil  law  only  corporeal  personal  prop- 
erty could  be  bailed,  on  the  ground  that  it  alone  admitted  of  the 
actual  delivery  necessary  to  constitute  a  bailment,  but  under  the 
common  law  incorporeal  personalty,  as  debts  or  choses  in  action, 
may  be  bailed.  In  fact,  the  development  of  the  law  of  bailment 
has  been  a  transition  from  the  theory  of  actual  delivery  and  rede- 
livery of  corporeal  chattels  to  the  theory  of  the  transfer  for  a 
special  purpose  of  the  possession  of  any  kind  of  personal  prop- 
erty, and  to-day  it  can  be  said  that  the  one  distinguishing  element 
of  the  bailment  relation  is  the  rightful  temporary  holding  of  the 
possession  of  personal  property,  by  one  not  its  owner.*  Since 
the  relation  is  one  of  contract,  the  general  rules  applicable  to  all 
contracts  apply,  A  marked  feature  of  the  law  of  bailments  is  the 
fact  that  it  consists  almost  wholly  of  duties  arising  between  the 
parties  by  implication  of  law,  almost  all  of  which  may  be  changed 
by  express  contract,  and  in  perhaps  no  other  branch  of  the  law 
of  contracts  do  we  find  so  prominently  the  implied  contract.^ 
Likewise,  as  most  contracts  can  be  entered  into  by  the  agent  of 
the  contractor,  the  principles  of  agency  apply  to  bailments,  and 
this  is  especially  true  in  reference  to  the  law  of  carriers,  since 
most  of  the  carriers  to-day  are  great  corporations  which  can 
contract  only  by  and  through  their  agents. 

§  3.  Origin  of  the  law  of  bailment. — The  modern  law 
of  bailment  is  to  some  degree  a  mingling  of  the  Roman  law  and 
the  common  law,  or  rather,  the  grafting  of  Roman  law  terms  upon 
common-law  principles.  The  modern  English  law  of  bailment 
had  its  origin  in  the  case  of  Coggs  v.  Bernard,^  decided  by  Lord 
Holt  in  1703,  and  all  the  present  law  of  the  subject  has  been  a 
development  of  principles  tentatively  laid  down  by  Lord  Holt 

*  Street    on    Foundations   of   Legal  other,     that     creates     the     bailment. 
Liability,  vol.  2,  252;  Schouler  Bail-  Burns  v.  State,  145  Wis.  Z7i,  128  N. 
ments     Including     Carriers      (1905),  W.  987,  140  Am.  St.  1081. 
§  1.  A  contract  between  the  parties  'Hale  Bailments,  p.  27. 
is  not  necessary  to  a  bailment,  but  it  "Coggs    v.    Bernard,    2    Ld.    Ray- 
is  the  element  of  lawful  possession,  mond  909,    1    Smith   Lead.    Cas.,   7th 
however  created,  and  duty  to  account  Am.  ed.  369. 
for  the  thing  as  the  property  of  an- 


4  BAILMENTS. 

in  that  case.  Sir  William  Jones  in  his  Essay  on  Bailments  and 
Justice  Story  in  his  work  on  bailments  have  had  much  to  do 
with  the  development  and  classification  of  the  principles  underly- 
ing the  subject.^  Lord  Holt  and  Sir  William  Jones  introduced 
the  classification  of  the  Roman  law  as  to  the  relations  embraced 
in  the  subject  of  bailment,  Justice  Story  introduced  another 
classification  based  upon  the  doctrine  of  consideration,  and  the 
modern  classification  is  a  combination  of  the  two,  using  names 
derived  from  the  Roman  classification  for  many  of  the  classes, 
while  not  giving  to  the  relations  thus  designated  the  full  Roman 
signification.^  A  large  portion  of  the  lav/  of  bailments  has  been 
laid  down  by  the  text-writers  in  advance  of  actual  decision  from 
the  courts,  and  for  many  of  the  principles  referred  to  in  this  ar- 
ticle, citation  is  made  of  the  works  of  Story  and  Jones  as  reposi- 
tories of  the  law. 

§  4.  Classification  of  bailments. — The  general  classes 
of  bailments  are :  i.  Gratuitous  bailments,  for  the  benefit  of  one  of 
the  parties  to  the  bailment ;  and  2.  Bailments  upon  consideration, 
for  the  mutual  benefit  of  both  parties.  Gratuitous  bailments  are 
further  subdivided:  i.  Bailments  for  the  benefit  of  the  bailor 
alone,  of  which  there  are  two  kinds :  Deposits,  where  the  bailee 
takes  a  thing  to  be  kept  gratuitously  for  the  bailor,  and  Mandates, 
where  the  bailee  undertakes  for  the  bailor  gratuitously  to  per- 
form work  upon  a  thing,  or  to  carry  it  from  one  place  to  an- 
other; and  2.  Bailments  for  the  benefit  of  the  bailee  alone,  or 
Commodates,  where  the  bailor  gratuitously  lends  a  thing  to  the 
bailee  for  his  temporary  use  and  enjoyment.  Of  Bailments  upon 
consideration  for  mutual  benefit,  there  are  two  main  divisions: 
I.  Pledges  (the  Roman  pignus  or  vadium),  where  the  possession 
of  a  thing  is  delivered  as  security  for  the  performance  of  an 
undertaking  or  obligation,  or  the  payment  of  a  debt;  and  2. 
Contracts  of  hiring,  where  the  bailee  does  something  to  the  thing 
bailed  in  return  for  a  reward.    Of  contracts  of  hiring  there  are 

'Jones  Essay  on  Bailments  (1781);  Legal    Liability,    vol.    2,    ch.    27,    pp. 

Story  Bailments  (1832).  271-4;     Hale     Bailments,     pp.     35-7; 

^For     the     classification     of     bail-  Goddard    Bailments,    §    12;    Schouler 

ments,   see  Van   Zile   Bailments    (2d  Bailments  (3rd  ed.),  §§  13,  14. 
ed.),  ch.  2;  Street  on  Foundations  of 


DEFINITIONS    AND    PRINCIPLES.  5 

four  classes,  according  to  whether  the  bailor  lets  to  the  bailee  the 
use  of  a  thing  (locatio  rei),  or  hires  tlie  bailee  to  work  upon  a 
thing  (locatio  operis  faciendi),  or  hires  him  to  keep  a  thing 
(locatio  custodise),  or  hires  him  to  carry  a  thing  from  place  to 
place  (locatio  operis  mercium  vehendarum),  in  these  latter  three 
the  bailor  hiring  services  about  a  chattel.  And  of  contracts  of 
carriage  there  may  be  contracts  for  the  carriage  of  goods,  or  of 
passengers,  or  of  live  stock.  Among  the  locatio  or  hiring  con- 
tracts three  species  stand  out  as  exceptional  bailments,  because  of 
certain  exceptional  liabilities  and  duties  imposed  by  law  because 
of  their  peculiar  situation,  and  these  are  postmasters,  innkeepers 
and  common  carriers.  In  magnitude  and  importance  the  subject 
of  carriers  at  the  present  day  overshadows  all  the  other  subjects 
in  the  classification  of  bailments. 

§  5.     The   consideration   which   supports   the    contract. — 

Under  the  common  law  every  contract  not  under  seal  must  be  sup- 
ported by  a  consideration,  while  under  the  civil  law,  from  which 
we  in  part  derive  our  law  of  bailments,  such  was  not  in  all  instances 
necessary."  In  the  cases  of  bailments  for  mutual  benefit,  it  is  at 
once  apparent  that  the  contract  is  supported  by  a  consideration 
moving  from  each  side.  Where  the  bailment  is  a  commodate,  the 
benefit  accruing  to  the  bailee  is  sufficient  consideration  to  hold 
him  to  the  legal  obligation  of  his  contract,  but  it  is  not  so  easy 
to  see  what  consideration  binds  the  gratuitous  bailee  for  the 
benefit  of  the  bailor  in  a  deposit  or  mandate.  However,  it  is 
settled  that  the  delivery  of  the  property  into  the  bailee's  care, 
which  is  a  detriment  to  the  bailor  in  that  it  deprives  him  of  the 
possession  of  his  property  and  some  rights  connected  therewith, 
is  a  sufficient  consideration  for  the  bailee's  contract,  if  he  accepts 
the  goods.  It  is  said  that  the  confidence  reposed  in  the  bailee  by 
the  bailor  is  a  sufficient  consideration,  or  in  the  words  of  Lord 
Holt  in  Coggs  V.  Bernard,  "the  owner  trusting  him  [the  bailee] 

®In  a  real  contract  under  the  civil  was    in    early    English    days   that    of 

law   a  duty  attached  under  the  law,  debt,    rather    than    assumpsit.       See 

without   aid    from   a   promise   which  Street  on  Foundations  of  Legal  Lia- 

must  be  supported  by  a  consideration,  bility,  vol.  2,  p.  270,  vol.  2,  ch.  XXVI; 

The    action    in    cases    of    bailment  Coggs  v.  Bernard,  2  Ld.  Raym.  909. 


5  BAILMENTS. 

with  the  goods  is  a  sufficient  consideration  to  obhge  him  to  a 
careful  management."^" 

§  6.  Principles  common  to  all  bailments  and  subject- 
matter  of  a  bailment. — There  are  certain  well-established 
principles  of  law  which  are  applicable  to  all  of  the  various  classes 
of  bailments,  as  well  as  certain  essential  elements  common  to  all 
bailments,  and  it  will  be  the  aim  of  the  sections  next  succeeding 
to  briefly  discuss  these  principles  and  elements.  The  subject- 
matter  of  a  bailment  is  always  personal  property.  It  may  be 
corporeal  or  incorporeal.^^  Real  estate  cannot  be  the  subject  of  a 
bailment.^^  When  one  by  contract  transfers  the  possession  of 
realty  to  another,  while  retaining  ownership,  the  relation  created, 
though  to  a  certain  extent  similar  to  that  of  bailor  and  bailee,  is 
that  of  landlord  and  tenant.  In  fact,  the  distinction  between  the 
relations  is  one  rather  artificial  than  actual,  but  from  its  incep- 
tion the  law  of  bailments  has  been  confined  to  personal  property. 

§  7.  The  parties  to  a  bailment. — The  parties  to  a  bail- 
ment are  called  the  bailor  and  the  bailee.  The  bailor  is  the 
party  from  whose  possession  the  property  is  transferred  for  the 
accomplishment  of  the  special  purpose  of  the  bailment,  and  the 
bailee  is  the  party  into  whose  possession  such  transfer  for  such 
purpose  is  made.  It  is  not  necessary  that  the  bailor  should  be 
the  owner,  but  simply  that  he  have  possession  of  the  property, 
nor  is  it  necessary  that  his  possession  should  be  lawful.^^  If  a 
bailment  is  made  by  one  entitled  only  to  the  possession  of  the 
property,  it  is,  of  course,  liable  to  be  defeated  in  its  purpose  by 
the  exercise  of  the  paramount  rights  of  the  owner.  Where  a 
bailment  is  made  by  an  express  contract,  the  capacity  of  the  par- 

"Coggs  V.  Bernard,  2  Ld.  Raym.  10  Johns.  (N.  Y.)  471;  Appleton  v. 
909;  Clark  v.  Gaylord,  24  Conn.  484;  Donaldson,  3  Pa.  St.  381.  Any  kind 
McCauley  v.  Davidson,  10  Minn.  418,  of  personal  property,  including  cur- 
Gilfillan  335;  Kincheloe  v.  Priest,  89  rent  money,  and  even  a  chose  in  ac- 
Mo.  240,  58  Am.  Rep.  117.  See  tion,  if  in  existence,  may  be  the  sub- 
Young  V.  Noble,  2  Disney  (Ohio)  ject  of  a  bailment.  Van  Wagoner  v. 
485;  McDaniels  v.  Robinson,  26  Vt.  Bucklev.  133  N.  Y.  S.  599. 
316,  62  Am.  Dec.  574n.  ^Williams    v.    Jones,    3    H.    &    C. 

"Loomis    V.    Stave,    72    111.    623;  256;   Coupledike  v.   Coupledike,  Cro. 

Jarvis     v.     Rogers,     15    Mass.   389;  Jac.   39.     See  Dewey  v.    Bowman,  8 

White  V.    Phelps,    14   Minn.   27,    100  Cal.  145. 

Am.   Dec.   190;   McLean  v.   Walker,  "Van  Zile  Bailments  (2d  ed.),  §  11. 


DEFINITIONS   AND   PRINCIPLES.  7 

ties  to  contract  is  governed  by  their  competency  to  enter  into  an 
ordinary  contract,  and  infants,  lunatics  or  married  women,  ex- 
cept where  their  disabiHties  have  been  removed  by  statute,  can 
no  more  enter  into  a  baihnent  contract  than  any  other  contract.*' 
However,  as  has  often  been  said,  this  disabihty  is  to  be  used  as  a 
shield,  and  not  as  a  sword,  and  while  persons  under  a  disability 
are  not  liable  for  a  breach  of  their  contract,  yet,  having  once 
come  into  the  possession  of  goods,  they  are  liable  in  tort  for  their 
conversion,  and  a  departure  from  the  purposes  of  the  bailment  is 
usually  held  a  conversion/^  An  infant  may  make  a  contract  as 
bailor,  which  will  be  binding  on  the  bailee  until  the  infant  re- 
pudiates it,  or  recalls  the  property  bailed.^®  Under  the  common 
law  the  contract  of  a  married  woman  with  respect  to  a  bailment 
is  absolutely  void/'^  But  where  one  under  a  disability  becomes 
in  such  a  situation  that  the  law  would  imply  the  bailment  relation 
to  exist,  as  if  such  a  one  finds  lost  property,  then  he  is  held  to 
the  care  of  a  bailee  in  regard  to  the  property."  A  corporation 
acting  within  its  corporate  authority  may  be  a  bailor  or  bailee.^^ 

§  8.  Delivery  and  acceptance  of  the  property. — It  is  es- 
sential to  the  existence  and  the  inception  of  the  bailment  relation 
that  there  should  be  a  delivery  of  the  thing  bailed,  or  something 
which  takes  the  place  of  delivery.  Delivery  may  be  actual,  con- 
structive or  by  operation  of  law.  Delivery  is  actual  where  the 
bailor  makes  a  manual  transfer  of  the  property  to  the  bailee,  as 
where  shoes  are  left  with  a  cobbler  for  repairs,  or  a  package  de- 

"Fetrow  v.  Wiseman,  40  Ind.  148;  Wiley,  23  Vt.  355,  56  Am.  Dec.  85; 

Fay  V.  Burditt,  81  Ind.  433,  42  Am.  Ray   v.    Tubbs,   50   Vt.   688,   28   Am. 

Rep.    142:    Illinois    Land   &c.    Co.   v.  Rep.  519.  See  Clark  Contracts  (1894), 

Bonner.    75    111.    315;    Hagebush    v.  p.  261. 

Ragland,  78  111.  40;  Scanlan  v.  Cobb,  '"Story  Bailments,   §   50;  Schouler 

85  111.  296;  Holmes  v.  Rice,  45  Mich.  Bailments    (3d  ed.),   §  27. 

142,  7  N.  W.  772;   Shoulters  v.  Al-  "Clark    Contracts    (1894),    p.   276. 

len,    51    Mich.    529,    16    N.    W.    888;  ''Van  Zile  Bailments  (2d  ed.),  §  12. 

Owen  V.  Long,  112  Mass.  403;  Eaton  '"Lehman   Bros.   v.   Tallassce  Mfg. 

V.    Eaton,   Z7   N.   J.    L.    108,    18   Am.  Co.,  64  Ala.  567:  Combination  Trust 

Rep.    716;    Mutual    Life    Ins.    Co.    v.  Co.  v.  Weed,  2  Fed.  24;   Baldwin  v. 

Hunt.  79  N.  Y.  541 ;  Harner  v.  Dip-  Canfield,  26  Minn.  43,  1  N.  W.  261  ; 

pie,  31  Ohio  St.  72,  27  Am.  Rep.  496.  Chouteau  v.  Allen.  70  Mo.  290;  Dun- 

"  Mills    V.    Graham,    1    Bos.    &    P.  comb  v.  New  York,  H.  &  N.  R.  Co.. 

140;     Homer    v.    Thwing,     3     Pick.  84  N.  Y.  190;  Lloyd  v.  West  Branch 

(Mass.)  492;  Freeman  v.  Boland,  14  Bank,   15   Pa.   St    172,  SZ  Am.   Dec. 

R.  L  39,  51  Am.  Rep.  340;  Towne  v.  581. 


8  BAILMENTS. 

livered  to  an  expressman,  or  an  umbrella  loaned  to  a  friend. 
Constructive  delivery  arises  when,  on  account  of  circumstances 
or  the  nature  of  the  property,  manual  delivery  is  impossible  or 
useless,  but  from  the  circumstances  there  may  be  implied  an  in- 
tention of  the  person  in  possession  to  act  as  bailee  for  another. '^^ 
So,  where  a  vendor  holds  goods  after  a  sale,  he  is  by  constructive 
delivery  the  bailee  of  such  goods  for  the  vendee,'^  or  where  after 
a  contract  of  hiring  is  terminated  the  hirer  retains  the  property 
for  the  benefit  of  the  bailor,  a  new  bailment  is  created  without 
actual  change  of  possession.^^  Delivery  by  operation  of  law  takes 
place  when  lost  goods  are  found,  or  goods  seized  under  legal 
process,  the  finder  or  the  officer  being  a  bailee  by  operation  of 
the  law,  and  not  because  the  owner  has  consented  to  their  deliv- 
ery to  him.^^  A  delivery  may  be  made  to  the  servant  or  agent  of 
the  bailee.-*  Delivery  is  not  complete  without  acceptance  by 
the  bailee,  and  even  though  one  may  involuntarily  become  a 
bailor,  he  can  not  be  charged  as  a  bailee  unless  he  voluntarily 
takes  possession  of  the  goods,  even  in  case  of  the  finder  of  lost 
property.-^  But  it  is  said  that  where  one  knowingly  holds  pos- 
session of  another's  goods,  he  is  liable  as  a  bailee,  and  if  he  finds 
the  goods  of  another  in  his  possession  and  does  not  know  how  he 
obtained  possession,  he  is  held  as  a  baliee  after  he  obtains  no- 
tice. ^^    Although  one  may  not  be  made  a  bailee  against  his  will," 

="  Story  Bailments  (9th  ed.),  §  55;  ^Goddard  Bailments,  §  4. 

Blake  V.  Kimball,  106  Mass.  115;  Tux-  ==*  Boynton    v.    Payrow,    67    Maine 

worth  V.  Moore,  9  Pick.  (Mass.)  346;  587;  Brown  v,  Warren,  43  N.  H.  430; 

■Whitaker      v.      Sumner,      20      Pick.  City  Bank  v.  Perkins,  29  N.  Y.  554, 

(Mass.)   399;   Dillenback  v.   Jerome,  86  Am.  Dec.  332;  Lloyd  v.  Barden,  3 

7  Cow.    (N.   Y.)    294.     See  King  v.  Strob.    (S.   Car.)    343;   McCready   v. 

Jarman,   35    Ark.    190,   Z1   Am.    Rep.  Haslock,  3  Tenn.  Ch.  13.     See  Baker 

11,  and  note;   Sherman  v.   Hicks,  14  &  Loclcwood  Mfg.  Co.  v.  Clayton,  40 

N.  Mex.  439,  94  Pac.  959.  Tex.  Civ.  App.  586,  90  S.  W.  519. 

^  Oakley  v.  State,  40  Ala.  372.  So  ^  Goddard  Bailments,  §  5.  One 
where  the  purchaser  of  goods  shipped  who  finds  a  thing  is  not  compelled 
them  back  to  the  seller  without  any  to  take  possession  of  it,  but  if  he  does 
notification,  or  any  previous  agree-  so  voluntarily  he  is  held  by  the  law 
ment,  and  the  seller  stored  the  goods  to  the  care  of  a  depositary.  See  Van- 
to  protect  them,  the  seller  became  a  drink  v.  Archer,  1  Leon.  221 ;  Dough- 
gratuitous  bailee  for  the  buyer,  and  erty  v.  Posegate,  3  Iowa  88,  Cory  v. 
the  buyer  was  liable  to  him  for  nee-  Little,  6  N.  H.  213,  25  Am.  Dec.  458. 
essary  storage  charges  actually  paid.  ""Hale  Bailments,  §  2;  Wolf  v. 
Smith  V.  F.  W.  Heitman  Co.,  44  Shannon,  50  111.  App.  396;  Jones  v. 
Tex.   Civ.   App.  358,  98  S.  W.   1074.  Maxwell,  1  Lack.  Leg.  N.  (Pa.)   191. 

^Macomber  v.  Parker,  14  Pick.  -'Cory  v.  Little,  6  N.  H.  213,  25 
(Mass.)  497. 


DEFINITIONS    AND    PRINCIPLES.  9 

yet  as  an  agreement  between  the  parties  is  not  necessary  to  create 
a  bailment,  and  it  may  arise  by  operation  of  law,  a  taking  posses- 
sion of  personal  property  without  a  present  intent  to  appropriate 
it  may  bring  into  being  all  the  contractual  elements  essential  to 
a  bailment;  as  where  a  lunatic  throws  away  a  roll  of  money  while 
being  pursued  and  one  of  the  pursuers  picks  it  up  and  gives  it  to 
a  constable  who  takes  the  lunatic  in  custody,  the  conj^table  is  a 
bailee  of  the  money.-® 

§  9.  Possession  of  the  property. — As  we  have  seen,  the 
characteristic  of  the  bailment  relation  is  that  the  possession  of 
the  property  bailed,  without  title  thereto,  is  in  the  bailee,  and  it  is 
essential  to  the  existence  of  the  relation  that  the  bailee  have  pos- 
session. During  the  accomplishment  of  the  special  purpose  of 
the  bailment  the  bailee  has  the  right  of  possession  against  the 
bailor,  so  long  as  the  bailee  himself  is  not  in  default  in  the  con- 
ditions of  the  contract.-^  But  the  bailee  has  no  title,  by  an  un- 
authorized sale  cannot  convey  title  to  an  innocent  purchaser,  can 
in  no  event  convey  more  than  his  own  interest,  and  cannot  subject 
the  property  bailed  to  a  lien.^° 

§  10.  The  bailor's  title  and  rights. — While  the  bailee  has 
the  right  of  possession,  he  can  never  hold  the  general  title  while 
the  relation  of  bailment  continues,  for  a  man  cannot  be  a  bailee 
for  himself.  The  right  of  property  remains  in  the  bailor,  if  he  be 
the  owner;  if  not,  it  remains  in  the  true  owner.^^  The  owner  may 

Am.  Dec.  458;  Lloyd  v.  West  Branch  33  Pa.  Super.  Ct.  218;  Barnett  v. 
Bank,  15  Pa.' St.  172,  53  Am.  Dec.  Fein,  41  Pa.  Super.  Ct.  423;  Wood- 
SSI,  ward  V.  San  Antonio  Tr.  Co.    (Tex. 

=*  Burns  v.  State,  145  Wis.  373,  128  Civ.  App.),  95  S.  W.  76;  Cases  cited 

N.  W.  987,  140  Am.  St.  1081.  in   note,  25   L.   R.   A.    (N.   S.)    776. 

^Simpson  v.   Wrenn,   50   111.  222;  Where    the    conditional    vendee    of 

Burdict  V.  Murra}^  3  Vt.  302,  21  Am.  property  bails  it  for  its  improvement 

Dec.  588.  by  work  and  labor  thereon,  no   lia- 

^^  Boozer  v.  Jones,  169  Ala.  481,  53  bility  is  created  against  the  vendor  or 

So.   1018;  Clay  v.  Sullivan,  156  Ala.  the  property.     Baughnan  Automobile 

892,  47  So.  153;  Robinson  v.  Haas,  40  Co.  v.  Emanuel,  137  Ga.  354,  73  S.  E. 

Cal.  474;  Newton  v.  Cardwell  &c.  Co.,  511. 

41  Colo.  492,  92  Pac.  914;  Leffler  v.        ""  See    Story   Bailments    (9th    ed.), 

Watson,  13  Ind.  App.  176,  40  N.  E.  §  93;  Henry  v.  Patterson,  57  Pa.  St. 

1107,  41  N.  E.  467;  Small  v.  Robin-  346;    Pritchett   v.    Cook,   62    Pa.    St. 

son,  69  Maine  425,  31  Am.  Rep.  299;  193;  Northcutt  v.  State,  60  Tex.  Cr. 

Sowden  V.  Kessler,  76  Mo.  App.  581;  App.  259,  131  S.  W.  1128;  The  Laflin 

Heisley  v.  Economy  Tool  Mfg.  Co.,  &  Rand  Powder  Co.  v.  Burkhardt,  97 

U.  S.  110,  24  L.  ed.  973. 


lO  BAILMENTS. 

transfer  the  title  and  the  right  of  property  while  the  bailment  is  in 
the  bailee's  possession,  subject  to  the  bailee's  rights,  and  without 
the  bailee's  consent;  and  if  the  bailee  knows  of  such  transfer  of 
title  he  must  hold  the  property  as  against  attaching  creditors  of 
the  bailor,  or  a  claimant  as  bona  fide  purchaser.^^  And  where  the 
bailor's  right  of  property  carries  with  it  the  right  of  possession, 
he  may  maintain  replevin  against  one  who  is  wrongfully  in  pos- 
session of  the  property  bailed. ^^ 

§  11.  The  bailee's  estoppel  to  deny  the  bailor's  title. — 
"A  bailee  shall  never  be  permitted  to  controvert  the  bailor's  title, 
or  set  up  against  him  a  title  acquired  by  himself  during  the  bail- 
ment, which  is  hostile  to,  or  inconsistent  in  character  with,  that 
which  he  acknowledged  in  accepting  the  bailment."^*  And  if 
the  bailee  owns  the  paramount  title  but  receives  possession  from 
the  bailor  under  a  bailment  contract  he  is  estopped  to  deny  th« 
bailor's  title  until  there  has  been  a  redelivery .^^  But  this  estop- 
pel is  only  as  to  title  at  the  time  of  bailment  and  the  bailee  may 
show  that  since  the  bailment  the  title  has  been  assigned  to  an- 

"^ Riddle  v.  Blair,  148  Ala.  461,  42        "Jensen  v.  Eagle  Ore  Co.,  47  Colo. 

So.  566;  Hodges  v.  Kurd,  47  111.  363;  306,  107  Pac.  259,  33  L.  R.  A.  (N.  S.) 

Erwin  v.  Arthur,  61  Mo.  386;  Gerber  681    and   note.     See   also.    Riddle   v. 

V.  Monie,  56  Barb.  (N.  Y.)  652.  Blair,  148  Ala.  461.  42  So.  560;  Palm- 

^  Walker  v.  Wilkinson,  35  Ala.  725,  tag  v.  Doutrick,  59  Cal.  154,  43  Am. 

76  Am.  Dec.  315;  Cannon  v.  Kinney,  Rep.  245;  Barker  v.  S.  A.  Lewis  &c. 

3  Scam.    (111.)   9;  Root  v.  Shandler,  Co.,   79  Conn.  342,  65  Atl.   143,   118 

10  Wend.   (N.  Y.)   110,  25  Am.  Dec.  Am.    St.    141;    Simpson    v.    Wrenn, 

546;  Estey  Co.  v.  Dick,  41  Pa.  Super.  50  111.  222,  99  Am.  Dec.  511;   Pulli- 

Ct.    610;    Burdict   v.    Murray,    3    Vt.  am    v.    Burlingame,   81    Mo.    Ill,    51 

302,    21    Am.    Dec.    588;    Strong    v.  Am.  Rep.  229;   Hendricks  v.  Mount, 

Adams,  30  Vt.  221,  73  Am.  Dec.  305.  5    N.    J.    L.    738,   8    Am.    Dec.   623 ; 

If  the  bailor  has  the  right  to  posses-  First    Nat.    Bank   v.    Mason,   95    Pa. 

sion   at  any  time,  he  may   maintain  St.    113,    40    Am.    Rep.    632;    In    re 

trespass  against  a  third  person  for  in-  "The  Idaho,"  93  U.  S.  575,  23  _L.  ed. 

jury    to    the    property.      Bradley    v.  978;  Nudd  v.  Montanye,  38  Wis.  511, 

Davis,  14  Maine  44,  30  Am.  Dec.  729;  20  Am.  Rep.  25.  1 

Staples  V.  Smith,  48  Maine  470 ;  Wal-        ''  Pepper  v.  James,  7  Ga.  App.  518. 

cot  V.  Pomeroy,  2  Pick.  (Mass.)   121.  67  S.  E.  218;  Simpson  v.  Wrenn,  50 

But  if  the  bailment  is  for  a  definite  111.  222;   Thompson  v.   Williams,  30 

time,  the  Isailor  cannot  maintain  tres-  Kans.    114,    1    Pac.    47;    Bursley    v. 

pass,  since  he  has  no  right  to  pos-  Hamilton,    15    Pick.    (Mass.)    40,   25 

session   until   the   expiration    of    the  Am.  Dec.  433n;  Osgood  v.  Nichols,  5 

time.     Hume    v.    Tufts,    6    Blackf.  Gray  (Mass.)  420;  Bricker  v.  Stroud 

(Ind.)  136;  Lunt  v.  Brown,  13  Maine  Bros.,  56  Mo.  App.  183;  Hampton  v. 

236;    Walcot    v.    Pomeroy,    2    Pick.  Swisher.  4  N.  J.  L.  73.     See  H.  C. 

(Mass.)    121;   Wilson  v.  Martin,  40  Porter  Co.  v.  Boyd,  171  Fed.  305,  96 

N.  H.  88.  C.  C.  A.  197. 


DEFINITIONS   AND   PRINCIPLES. 


II 


other.^®  The  purchaser  from  the  bailor  may  assert  the  principle 
that  the  bailee  cannot  deny  his  bailor's  title.^^  If  the  bailor  is  not 
the  true  owner  and  the  true  owner  demands  the  property  from  the 
bailee,  he  is  liable  for  failure  to  deliver  to  such  owner,  and  de- 
livery to  the  true  owner  is  an  excuse  for  failure  to  redeliver  to  the 
bailor.^^  If  the  property  was  taken  from  the  bailor  by  regular 
Iprocess  of  law,  he  is  excused  from  redelivery,^^  And  it  is  held 
that  a  purchaser  from  the  bailee  is  not  estopped  to  assert  such  title 
against  the  bailor.*** 

§  12.  Bailee's  rights  against  third  parties. — Since  the 
bailee  is  entitled  to  the  possession  of  the  property  bailed,  he  has 
a  right  to  protect  that  possession  against  third  parties.  So  he 
may  bring  replevin  for  its  possession,  or  trover  for  its  value 
where  it  is  so  destroyed  or  injured  that  the  benefits  of  possession 
are  lessened.*^  Likewise  he  has  a  special  interest  to  the  extent 
of  his  rights  under  the  bailment  contract  and  may  sue  wrongdoers 


K 


'^Kingsman  v.  Kingsman,  6  Q.  B. 
Div.  122;  Cole  v.  Wabash,  St.  L.  & 
P.  R.  Co.,  21  Mo.  App.  443;  Gruel 
V.  Yetter,  27  Misc.  (N.  Y.)  494,  58 
N.  Y.  S.  373;  Burnett  v.  Fulton,  48 
N.  Car.  486.  The  bailee  when  sued 
for  conversion  is  not  estopped  from 
showing  that  the  title  held  by  the 
bailor  at  the  time  of  bailment  has 
since  that  time  been  acquired  by  him- 
self or  passed  to  another.  Shellhouse 
V.  Field  (Ind.  App.),  97  N.  E.i>40. 
I  *' Riddle  v.  Blair,  148  Ala.  461,  42 
So.  560. 

I  ^  Davis  V.  Donahoe- Kelly  Banking 
Co.,  152  Cal.  282,  92  Pac.  639;  Fisher 
V.  Bartlett,  8  Greenl.  (Maine)  122,  22 
Am.  Dec.  225 ;  Mullins  v.  Chickering, 
110  N.  Y.  513,  18  N.  E.  377,  1  L.  R. 
A.  463;  King  v.  Richards,  6  Whart. 
(Pa.)  418,  37  Am.  Dec.  420;  Rosen- 
field  V.  Express  Co.,  1  Woods  (U. 
S.)  131,  20  Fed.  Cas.  No.  12060;  In 
re  "The  Idaho,"  93  U.  S.  575,  23  L. 
ed.  978.  Or  if  the  true  owner  makes 
a  demand,  the  bailee  may  attorn  to 
him  by  agreeing  to  hold  the  property 
for  him,  and  may  set  up  his  demand, 
paramount  title  and  attornment  as  an 
excuse  for  not  redelivering  to  the 
bailor.  Biddle  v.  Bond,  6  B.  &  S.  225, 
118  E.  C  L.  225;  Dixon  v.  Yates,  5  B. 


6  Ad.  313,  27  E.  C.  L.  137;  Hayden 
V.  Davis,  9  Cal.  573 ;  Pepper  v.  James, 

7  Ga.  App.  518,  67  S.  E.  218;  Atlantic 
&c.  R.  Co.  V.  Spires,  1  Ga.  App.  22, 
57  S.  E.  973;  Hastings  v.  Allen,  14 
Ohio  58,  45  Am.  Dec.  522. 

*»Ohio  &c.  Co.  V.  Yohe,  51  Ind. 
181,  19  Am.  Rep.  727;  Fite  v.  Bried- 
enback,  32  Ky.  L.  400,  105  S.  W. 
1182;  French  v.  Star  Union  Transp. 
Co.,  134  Mass.  288;  Schrauth  v.  Dry 
Dock  Sav.  Bank,  86  N.  Y.  390; 
Bliven  v.  Hudson  R.  Co.,  36  N.  Y. 
403;  Stiles  v.  Davis,  1  Black  (U.  S.) 
101,  17  L.  ed.  33. 

*"  McFerrin  v.  Perry,  1  Sneed 
(Tenn.)  314. 

"Armory  v.  Delamirie,  1  Strange 
505,  1  Smith  Lead.  Cas.  679;  Atkins 
V.  Moore,  82  111.  240;  Little  v.  Fos- 
sett,  34  Maine  545,  56  Am.  Dec.  671 ; 
Harrington  v.  King,  121  Mass.  269; 
Chamberlain  v.  West,  37  Minn.  54, 
33  N.  W.  114;  Baggett  v.  McCormack, 
73  Miss.  552,  19  So.  89,  55  Am.  St. 
554;  Vermillion  v.  Parsons,  101  Mo. 
App.  602,  73  S.  W.  994.  When  the 
bailor  recovers  a  judgment  against 
the  bailee  for  the  value  of  the  goods, 
and  also  has  possession  of  them,  the 
bailee,  upon  satisfaction  of  the  judg- 
ment,   acquires   the   property    in    the 


•l2  BAILMENTS. 

who  have  lost  the  property  or  injured  it/^  or  if  he  has  an  interest 
under  an  express  contract  may  recover  for  the  neghgent  destruc- 
tion of  the  property  by  third  parties/^  As  a  rule,  he  may  recover 
the  entire  damages,  and  is  held  as  a  trustee  for  the  bailor  as  to  the 
excess  above  his  interest/* 

§  13.  Bailee's  right  to  use  of  property — Conversion. — The 
bailee  has  no  right  to  use  the  bailed  property  unless  it  is  given  him 
by  contract,  or  unless  the  owner's  assent  would  be  presumed ; 
and  he  is  not  only  liable  for  a  breach  of  the  contract  for  a  misuse 
of  the  article  bailed,  but  "The  general  rule  is  that  if  a  bailee 
having  authority  to  use  a  chattel  in  a  particular  way  uses  it  in 
a  different  way  or  to  a  greater  extent  than  authorized,  such  unau- 
thorized use  is  a  conversion  of  the  chattel  for  which  the  bailor 
may  maintain  a  trover  for  its  value."''^  It  is,  as  a  rule,  a  ques- 
tion of  circumstances  as  to  whether  the  use  was  authorized,  in  the 
absence  of  any  contract  on  the  subject  of  the  use,  and  the  fol- 
lowing tests  may  be  used  as  applicable.  One  is  to  consider 
whether  from  the  circumstances  the  owner's  assent  would  be  pre- 
sumed, and  this  is  generally  done  where  the  use  is  beneficial  to 
the  property,  but  not  so  when  it  is  not.  It  is  the  duty  of  the 
bailee  to  use  the  property  so  far  as  necessary  for  its  preservation, 
as  to  milk  a  cow,  and  to  give  a  horse  reasonable  exercise.  Also, 
if  the  property  is  of  such  a  character  that  it  requires  expense  to 
keep  it,  it  is  said  the  bailee  may  use  it  reasonably  to  compensate 

goods,  and  may  bring  replevin  against  Nebr.  549,    107   N.  W.  793,   14  Ann. 

the  bailor  and  recover  them.     Bauer  Cas.  634,  and  note,  citing  many  cases 

V.  Hess.  76  N.  J.  L.  257,  69  Atl.  966.  in  which  a  bailee  has  recovered  for 

*^Harev.  Fuller,  7  Ala.  717;  Knight  injuries  to  or  the  loss  of  such  prop- 
V.  Davis  Carriage  Co.,  71  Fed.  662,  18  erty  caused  by  the  acts  of  persons 
C.  C.  A.  287;  Atlantic  Coast  Line  R.  other  than  the  ovi'ner. 
Co.  V.  Partridge,  58  Fla.  153,  50  So.  "Walsh  v.  United  States  Tent  &c. 
634;  Peoria  P.  &  J.  R.  Co.  v.  Mc-  Co-.-153  J1L^PP:_229 :  McCrossan  v. 
Intire,  39  111.  298;  Little  v.  Fossett,  Reillv,  33  Pa.  Super.  "Ct.  628. 
34  Maine  545,  56  Am.  Dec.  671;  ^Cartlidge  v.  Sloan.  124  Ala.  596, 
Wilkes  V.  Southern  R.  Co.,  21  Ann.  26  So.  918.  See  also,  Br>'ant  v.  War- 
Cas.  79,  85  S.  Car.  346 ;  67  S.  E.  292 ;  dell,  2  Exch.  479 ;  Columbus  v.  How- 
Godfrey  V.  Pullman  Co.,  87  S.  Car.  ard,  6  Ga.  213.  See  note  to  McCurdy 
361,  69  S.  E.  666,  Ann.  Cas.  1912B  v.  Wallblom  Furniture  &  Carpet  Co., 
971.  See  Central  R.  of  New  Jer-  94  Minn.  326,  102  N.  W.  873.  To  the 
sey  V.  Buyway  Refining  Co.,  81  N.  same  effect,  Haines  v.  Chappell,  1  Ga. 
J.  L.  456,  79  Atl.  292,  Ann.  Cas.  1912  Aop.  480.  58  S.  E.  220;  Raynor  v. 
D  77  and  note.  Sheffler,  79  N.  J.  L.  340,  75  Atl.  748. 

*^  Union  Pacific  R.  Co.  v.  ^leyer,  76  The  bailee  is  liable  in  tort  for  con- 


DEFINITIONS    AND    PRINCIPLES.  I3 

him  for  the  charge  of  keeping/"  But  none  of  these  tests  fur- 
nishes an  absohite  rule.  It  has  been  held  that  the  bailee  of  a  slave 
may  make  a  reasonable  use  of  his  services/^  and  the  same  rule 
has  been  applied  to  the  bailee  of  a  horse.*^  An  unauthorized 
sale  by  the  bailee  is  a  conversion,  and  is  void  as  to  the  owner." 
So  a  wrongful  delivery  or  a  failure  to  redeliver  may  be  a  con- 
version/**  The  destruction  of  property  under  hire  by  the  bailee 
is  a  conversion. ^^ 

§  14.  Expenditures  upon  property  bailed. — In  the  ab- 
sence of  a  special  contract,  the  ordinary  expenses  incurred  in  the 
care  of  a  chattel  bailed  must  be  borne  by  the  bailee,  but  extraord- 
inary expenses,  such  as  those  which  become  necessary  in  an  emer- 
gency to  protect  the  property,  as  for  instance  a  veterinary  sur- 
geon's services  for  a  sick  horse,  must  be  paid  for  by  the  bailor, 
the  bailee  being  held  the  agent  of  the  bailor  to  do  whatever  is 
necessary  to  preserve  the  goods  and  for  this  purpose  to  bind  him 
by  a  contract  with  third  persons.^^  In  fact,  the  bailor  is  liable 
for  all  reasonably  necessary  expenses  which  are  not  connected 
with  the  benefit  to  the  bailee  to  be  obtained  from  the  accomplish- 
ment of  the  bailment  purpose,  but  which  are  connected  with  the 
necessary  care  of  the  property  for  the  owner.^^  The  bailee  is 
liable  for  expenses  caused  by  his  own  default.^^^ 

§  15.  The  bailor  must  not  expose  the  bailee  to  danger. — 
If  the  bailor  knows,  or  in  the  exercise  of  reasonable  diligence 

version.     Palmer  v.  Mayo,  80  Conn.  ""Taylor    v.    Welsh,    138    III.    App. 

353,  68  Atl.  369,  15  L.  R.  A.  (N.  S.)  190;  Schwartz  v.  Clark,  136  111.  App. 

428;  Farkas  v.  Powell,  86  Ga.  800,  13  150. 

S.  E.-200,  12  L.  R.  A.  397;  Hains  v.  "^"Murry  v.  Postal  Tel.  &c.  Co.,  210 

Chappell,   1    Ga.   App.  480,   58   S.   E.  Mass.   188;  96  N.   E.   316;   Alton  v. 

220;  Hall  v.  Corcoran,  107  Mass.  251,  New  York  Taxicab  Co.,  66  Misc.  (N. 

9  Am.  Rep.  30;  Hanson  v.  Skogman,  Y.)   191,  121  N.  Y.  S.  271.    See  cases 

14  N.  Dak.  445,  105  N.  W.  90;  Car-  cited  in  §  3005. 

ney  v.  Rease,  60  W.  Va.  676,  55  S.  E.  "  Kiskadden    v.    United    States,   44 

729.  Ct.  CI.  (U.  S.)  205. 

"  Alvord  V.  Davenport,  43  Vt.  30.  "'  Leach  v.  French,  69  Maine  389,  31 

*^  Farrow    v.     Bragg's    Admr.,    30  Am.  Rep.  296;  Harter  v.  Blanchard, 

Ala.   261 ;   Rand  v.   Oxford,   34  Ala.  64  Barb.  (N.  Y.)  617. 

474.  ^  Fagan  v.  Thompson,  38  Fed.  467 ; 

"'Coggs  V.   Bernard,  2  Ld.  Raym.  Furness  v.  Union  Nat.  Bank,  147  111. 

909;    Kennet    v.    Robinson,   2    J.    J.  570.  35  N.  E.  624. 

Marsh.  (Ky.)  84.  '^'aCullen  v.  Lord,  39  Iowa  302. 


14  BAILMENTS. 

could  know,  of  an5i:hing  about  the  thing  bailed  which  would  be 
liable  to  cause  injury  to  the  bailee,  he  is  liable  for  injury  caused 
by  his  failure  to  inform  him,  unless  the  defects  are  open  and 
patent  to  the  bailee.  Thus  the  bailor  of  an  animal  for  hire  is 
bound  to  disclose  vicious  propensities  which  are  directly  danger- 
ous, if  he  knows  of  them.^*  Since  in  cases  of  gratuitous  bail- 
ments the  benefit  is  exclusively  to  the  bailee,  the  liability  of  the 
bailor  for  defects  in  the  thing  loaned  is  only  for  those  which  he 
knows  but  does  not  communicate  to  the  bailee,  and  he  is  not  liable 
for  injuries  caused  by  defects  of  which  he  does  not  laiow.^^ 

§  16.     Care    to  be   taken   of  the   property   bailed. — The 

care  which  should  be  given  by  the  bailee  to  the  property  bailed  is 
almost  entirely  dependent  upon  the  circumstances  of  the  bail- 
ment.^^  But  the  general  rule  is  that  the  diligence  required  by 
the  bailee  is  dependent  upon  the  benefit  derived  from  the  bailment. 
Thus,  where  the  bailment  is  gratuitous,  for  the  benefit  of  the 
bailor,  the  bailee  is  held  to  only  a  slight  degree  of  diligence  ;®'^ 
where  the  bailment  is  one  for  mutual  benefit,  he  must  use  ordi- 
nary diligence,  that  is,  such  diligence  as  an  ordinarily  prudent 
man  under  similar  circumstances  uses  in  the  conduct  of  his  own 
affairs  of  similar  nature  ;^^  where  the  bailment  is  gratuitous, 

"*  Emmons  v.  Stevane,  11  N.  J.  L.  Co.,  105  N.  Car.  140,  11  S.  E.  316; 

570,  1Z  Atl.   544    (one   hiring  board  Grand  Trunk  R.  Co.  v.  Ives,  144  U. 

for  a  dog)  ;  Kissam  v.  Jones,  56  Hun  S.  408,  36  Lw  ed.  485,  12  Sup.  Ct.  679, 

(N.  Y.)  432.  31  N.  Y.  St.  198,  10  N.  "Davis  v.  Gay,  141  Mass.  53,  6  N. 

Y.   S.  94;   Conn  v.   Hunsberger,  224  E.  549;  Gerish  v.  Savings  Bank,  138 

Pa.  St.  154,  11  Atl.  324,  25  L.  R.  A.  Mich.  46,  100  N.  W.   1000;   Hibernia 

(N.  S.)  372,  132  Am.  St.  770  (a  liv-  Bldg.  Assn.  v.  McGrath.  154  Pa.  St. 

ery   stable  keeper  who  lets  a  horse  296,   26   Atl.    Zll,   35    Am.    St.    828; 

for  hire).  Whitney  v.  First  Nat.   Bank,  55  Vt. 

''Robideaux    v.    Hebert,    118    La.  154,  45  Am.  Rep.  598.    Compare  Levi 

1089,  43  So.  887,  12  L.  R.  A.  (N.  S.)  v.  Missouri  &c.  R.  Co.,  157  ^lo.  App. 

632 ;  Gagnon  v.  Dana,  69  N.  H.  264,  536,  138  S.  W.  699. 

39  Atl.  982,  41  L.  R.  A.  389,  76  Am.  '^  Fairmount   Coal   Co.   v.   Jones  & 

St.  170.  Adams  Co.,  134  Fed.  711.  67  C.  C.  A. 

''Hale  Bailments,  p.  23;  2  Jaggard  265;  Morris  &c.  Co.  v.  Wilkes.  1  Ga. 

Torts  900;  Netzow  Mfg.  Co.  V.  South-  App.  751.  58  S.   E.  232;   Walpert  v. 

ernR.  Co.,7Ga.  App.  163,66S.  E.399;  Bohan,  126  Ga.  532.  55   S.  E.  181,  6 

Pennsylvania    R.    Co.    v.    O'Shaugh-  L.  R.  A.    (N.  S.)   828n,  115  Am.   St. 

nessv,    122   Ind.   588,  23   N.    E.   675;  114;  Hunter  v.  Ricke,  127  Iowa  108, 

Meredith  v.  Reed,  26  Ind.  334;  Lane  102  N.  W.  826;  Woodruff  v.  Painter, 

V.  Boston  &  A.  R.  Co.,  112  Mass.  455;  150  Pa.   St.  91,  24  Atl.  621.  30  Am. 

Barnum  v.  Terpenning,  75  Mich.  557,  St.  786;  Gleason  v.  Beers'  Estate,  59 

42  N.   W.  967:   Hall  v.   Chicago   B.  Vt.  581,  10  Atl.  86,  59  Am.  Rep.  757. 

&  N.  R.  Co.,  46  Minn.  439,  49  N.  W.  For  definition  of  ordinary  diligence  see 

239;  McAdoo  v.  Richmond  &  D.  R.  Cloyd  v.  Steiger,  139  III.  41,  28  N.  E. 


DEFINITIONS    AND    PRINCIPLES. 


15 


for  the  benefit  of  the  bailee,  he  must  use  great  diligence."*  It  will 
be  seen  from  the  definitions  given  of  ordinary  diligence  that  this 
is  dependent  upon  the  circumstances  of  the  case  and  may  vary 
greatly  under  different  conditions.*^"  Slight  diligence  may  perhaps 
be  said  to  be  the  diligence  shov^^n  in  their  own  affairs  by  men 
who  are  not  ordinarily  prudent,  but  who  take  some  care  of  their 
affairs,*^^  and  great  diligence  to  be  that  diligence  shown  by  men 
of  ordinary  prudence  in  affairs  of  their  own  to  which  they  give 
especial  care.*^~  It  would  probably  be  better  to  abandon  the  terms 
"slight,"  "ordinary"  and  "great  diligence"  entirely,  and  to  state  as 
the  rule  applicable  that  the  bailee  is  held  to  reasonable  care  under 


987;  Ray's  Admrs.  v.  Bank  of  Ken- 
tucky, 10  Bush  (Ky.)  344;  Wood  v. 
Remick,  143  Mass.  102,  9  N.  E.  831 ; 
Maynard  v.  Buck,  100  Mass.  40; 
Ruggles  V.  Fay,  31  Mich.  141 ;  Swent- 
zel  V.  Bank,  147  Pa.  St.  140,  23  Atl. 
405,  15  L.  R.  A.  305n,  30  Am.  St.  718; 
First  Nat.  Bank  of  CarHsle  v.  Gra- 
ham, 79  Pa.  St.  106,  21  Am.  Rep.  49. 
For  full  discussion  of  liability  of 
bailee  for  hire,  see  Firemen's  Fund 
Ins.  Co.  V.  Schreiber  (Wis.),  135  N. 
W.  507. 

'•Hagebush  v.  Ragland,  78  111.  40; 
W^ood  V.  McClure,  7  Ind.  155;  Green 
V.  Hollingsworth,  5  Dana  (Ky.)  173, 
30  Am.  Dec.  680. 

""Judge  Story  says  (Story  on  Bail- 
ments [9th  ed.],  §  15)  :  "What  con- 
stitutes ordinary  diligence  may  also 
be  materially  affected  by  the  nature, 
the  bulk,  and  the  value  of  the  articles. 
A  man  would  not  be  expected  to  take 
the  same  care  of  a  bag  of  oats  as  of 
a  bag  of  gold ;  of  a  bale  of  cotton  as 
of  a  box  of  diamonds  or  other  jew- 
elry; of  a  load  of  common  wood  as 
of  a  box  of  rare  paintings ;  of  a  rude 
block  of  marble  as  of  an  exquisite 
sculptured  statue.  The  value,  espe- 
cially, is  an  important  ingredient  to 
be  taken  into  consideration  upon 
every  question  of  negligence;  for 
that  may  be  gross  negligence  in  the 
case  of  a  parcel  of  extraordinary 
value,  which  in  the  case  of  a  common 
parcel  would  not  be  so.  The  degree 
of  care  which  a  man  may  reasonably 
be  required  to  take  of  anything  must, 
if  we  are  at  liberty  to  consult  the  dic- 


tates of  common  sense,  essentially 
depend  upon  the  quality  and  value  of 
the  thing,  and  the  temptation  thereby 
afforded  to  theft.  The  bailee,  there- 
fore, ought  to  proportion  his  care  to 
the  injury  or  loss  which  is  likely  to 
be  sustained  by  any  improvidence  on 
his  part."  Mr.  Hale  says,  "The  in- 
fluence of  custom  and  business  must 
also  be  considered  in  determining 
what  is  ordinary  diligence,  as,  in  cer- 
tain trades,  dispositions  may  be  made 
of  goods  by  a  man  of  ordinary  pru- 
dence which  under  other  circum- 
stances would  certainly  be  open  to  the 
charge  of  great  negligence."  Hale 
Bailments,  p.  26.  Mr.  Van  Zile  says, 
"To  the  circumstances  and  conditions 
important  in  determining  diligence  or 
negligence  in  caring  for  the  subject 
of  the  bailment,  noted  by  Judge 
Story,  might  be  added,  the  season  of 
the  year,  the  climate  of  the  country, 
the  time  and  place  of  doing  the  busi- 
ness; all  these  would  be  important 
elements  to  be  considered."  Van 
Zile  Bailments  (2d  ed.),  §  42.  See 
Erie  Bank  v.  Smith,  3  Brewst. 
(Pa.)  9. 

"' Story  Bailments  (9th  ed.),  §  16; 
Jones  Bailments,  8;  Goddard  Bail- 
ments, §  16;  Vaughan  v.  Menlove,  3 
Bing.  N.  Cas.  468;  Tompkins  v.  Salt- 
marsh.  14  Serg.  &  R.  (Pa.)  275. 

'^"  Hale  Bailments,  p.  27;  Scranton 
v.  Baxter.  4  Sandf.  (N.  Y.)  5:  Hage- 
bush  v.  Ragland,  78  111.  40;  Wood  v. 
McClure.  7  Ind.  155;  Cullen  v.  Lord, 
39  Iowa  302. 


l6  BAILMENTS. 

the  circumstances  of  the  case,  for  it  is  reasonable  that  the  bailee 
who  undertakes  a  gratuitous  deposit  or  mandate  should  not  be 
held  to  as  high  a  degree  of  care  as  the  one  who  undertakes  for  a 
compensation  to  perform  the  same  kind  of  services,  and  cer- 
tainly it  is  reasonable  that  one  to  whom  an  article  is  loaned  for 
his  own  use  gratuitously  should  be  held  to  a  higher  degree  of 
care  than  if  he  were  hiring  the  use  of  the  article,  since  in  the 
latter  case  the  bailor  could  not  expect  any  higher  care  than  he 
himself  would  ordinarily  give  to  the  article  bailed,  for  it  is  in  his 
ser\'ice,  as  well  as  the  bailee's.  But  where  a  loan  is  made  of  an 
article  for  the  benefit  of  the  bailee,  the  relation  is  almost  that  of 
a  debt,  and  the  bailee  should  be  held  to  a  degree  of  care  so  high 
that  little,  if  anything,  short  of  unavoidable  accident  or  a  cause  en- 
tirely beyond  his  control,  should  excuse  him  for  loss  or  injury  to 
the  property  which  occurs  while  it  is  in  his  possession.  Innkeepers 
and  common  carriers  are  held  to  an  extraordinary  degree  of  care 
as  to  property  bailed  to  them,  which  will  be  discussed  later.  The 
bailee  is  liable  for  loss  or  injury  to  the  property  caused  by  his 
failure  to  use  the  care  demanded  by  the  circumstances,  but,  ordi- 
narily, in  the  absence  of  his  negligence  in  this  respect,  the  bailor 
must  bear  any  loss  occurring  to  the  subject  of  the  bailment  while 
the  bailment  relation  exists.^^ 

§  17.  Bailee  must  act  in  good  faith. — In  addition  to  ex- 
ercising the  due  amount  of  care  commensurate  with  the  circum- 
stances of  the  bailment,  the  law  requires  the  bailee  to  act  with  hon- 
esty and  good  faith  in  carrying  out  the  purpose  of  the  bailment. 
He  cannot  sell  or  pledge  the  property  or  create  a  lien  thereon  as  if 
he  were  the  owner,  and,  as  we  have  seen,  may  not  assert  title 
in  himself  against  his  bailor,  nor  use  the  property  in  an  unau- 
thorized manner,  nor  in  any  way  is  he  allowed  to  deal  with  the 
goods  so  as  to  injure  the  owner.^* 

"Abraham   v.    Nunn,   42   Ala.    51:  Rep.  280;  Baker  &c.   Co.  v.  Clayton 

Watkins    V.    Roberts.    28    Ind.    167;  (Tex.    Civ.   App.),    103    S.   W.    197; 

Wood  V.   McClure,   7  Ind.   155;   Mc-  Carpenter  v.  Branch,   13  Vt.   161,  11 

Ginn  v.  Butler.  31  Iowa  160;  Levy  v.  Am.  Dec.  587. 

Bergeron,  20  La.  Ann.  290;   Cheno-  "  Schouler     Bailments      (3d     ed.), 

with  v.  Dickinson,  8  B.  Mon.    (Ky.)  §    17;    Hale    Bailments,    p.    28;    Van 

156;   Cass  v.  Boston  &c.   R.   Co.,   14  Zile  Bailments   (2d  ed.).     §52;  ^lor- 

Allen  (Mass.)  448;  Seller  v.  Schultz,  ris  Storage  &  Transfer  Co.  v.  Wilkes, 

44  Mich.  529,  7  N.  W.  225,  38  Am.  1  Ga.  App.  751,  58  S.  E.  232. 


DEFINITIONS    AND    PRINCIPLES.  1 7 

§  18.  Effect  of  special  contract. — If  there  is  no  special 
contract  of  bailment,  the  liability  and  duty  of  the  parties  is  deter- 
mined under  a  contract  implied  by  law  according  to  the  character 
of  the  bailment. *^^  But  the  parties  by  a  special  contract  may  de- 
termine the  manner  and  time  of  the  accomplishment  of  the  bail- 
ment purpose,  and  may  regulate  the  responsibilities  and  liabilities 
of  the  parties  to  any  extent  not  forbidden  by  public  policy  or  by 
statute.^^  So  the  bailee  may  be  relieved  from  all  liability,  or 
may  become  an  insurer,  but  any  enlargement  or  restriction  of 
the  liability  imposed  by  law  must  clearly  appear  from  words  of 
express  and  unambiguous  meaning."^  Public  policy  forbids  a 
bailee  to  contract  against  the  consequences  of  wilful  miscon- 
duct^^ or  gross  negligence,*^''  it  seems,  and  probably  no  court  would 
uphold  a  contract  making  one  unaccountable  for  the  acts  of  his 
agents  and  servants.^** 

§  19.  Compound  or  mixed  bailments. — "Compound  bail- 
ments may  exist,  involving  the  mingled  undertakings  of  custody, 
carriage,  or  work  upon  a  thing ;  or  again,  so  that  one  part  of  the 
service  is  upon  recompense  and  another  gratuitous ;  and  a  bailee's 
liability  may  shift  accordingly."^'^ 

§  20.  Redelivery. — As  we  have  seen,  the  redelivery  of 
the  property  bailed  to  the  bailor,  or  the  disposal  of  it  as  he  di- 
rects, after  the  accomplishment  of  the  bailment  purpose,  is  an  es- 
sential .element  of  the  bailment  contract.  The  general  rule  is 
that  the  identical  property  delivered  must  be  returned,  together 

*^  Story  Bailments   (9th  ed.),  §  10;  "» Lancaster   County   Nat.    Bank   v. 

Schouler  Bailments    (3d  ed.),  §  20;  Smith,  62  Pa.  St.  47.     See  Archer  v. 

Hale  Bailments,  p.  28;  Conway  Bank  Walker   38  Ind   472 

y-M'^"'"'^%"    E^P'^ess    Co.,    8    Allen  '"Peek   v.    North '  Staffordshire   R. 

(MassO   512.                ,    „^    ^  ,  «,,  Co.,  10  H.  L.  Cas.  473,  494. 

Schouler  Bailments  (3d  ed.),  §  20;  '^  Schouler  Bailments  (3d  ed  )   §21 

Story  Bailments   (9th  ed.),§§  31-36;  citing    Mariner    v.    Smi  h     5    Heifi: 

Jones  Bailments   48;  Hale  Bailments,  (Tenn.)  203,  in  which  gold  was  bailed 

nW  Co  io  Xl7-  ^^T' nn' p'  S'70  r'^'^^"^  '■^^^'■'J  to  be  sold  if  the  mar- 

277     R.H.n      ^v    b  ^-TS-n,  ^A.S-     ^^'^^  °"'y  to  be  kept  in  custody,  and 
277,   Belden  v.   Perkins    78  111.  4i9j.    Preston  v.  Prather,  137  U.  S.  604   34 

^Zhn^t'T-^^^'^.'M'J  ¥{  son  h  "^-  788.  11  Sup.'  Ct.  162,  in  which 

r,>;nt     9^1,^     pT"^'/^''.o1^'^-?'  by    mutual    agreement    a    gratuitous 

I'ttng    Story    Bailments     (9th    ed.),  bailment    was    changed    into    a    bail- 

§  32;  Doct.  &  S.  2  c.  38;  Jones  Bail-  ment  for  hire, 
meats,  11,  48. 

Bailments — 2 


l8  BAILMENTS. 

with  all  accessions  to  it  during  the  term  of  bailment.'^  If  the 
purpose  of  the  bailment  contemplated  that  the  property  should  be 
changed  in  form,  as  where  milk  is  bailed  to  a  dairyman  to  be 
returned  as  cheese  and  butter,  or  grain  to  a  miller  to  be  made 
into  flour,  or  cloth  to  a  tailor  to  be  made  into  clothes,  delivery 
in  the  changed  form  is  expected/^  And  ordinarily  delivery  of 
other  property  of  the  same  kind  and  equal  value  and  quantity  is 
not  a  fulfilment  of  the  obligation  to  redeliver  the  specific  chat- 
tel.''* But  it  is  held  that  this  rule  does  not  apply  to  stocks,  for 
there  is  no  conceivable  reason  why  another  stock  certificate  of 
precisely  similar  character  is  not  the  precise  equivalent  of  the 
one  bailed,  though  in  the  case  of  ordinary  bailments  there  may 
be  special  reasons  for  desiring  the  return  of  the  specific  chattel.^'' 
And  it  is  the  rule  where  grain  is  stored  in  a  common  bin  with  the 
grain  of  the  warehouseman  and  others,  where  it  is  impossible  to 
return  the  exact  subject  of  the  bailment,  yet  the  relation  is  that 
of  a  bailment  and  not  a  sale,  and  the  obligation  to  redeliver  is  met 
by  returning  a  like  quantity  of  grain  of  like  quality.'* 

§  21.  Termination  of  relation. — If  the  contract  of  bail- 
ment is  limited  as  to  time,  the  bailment  is  ended  at  the  expiration 
of  the  time,  and  the  bailee  must  either  redeliver  the  property  or 
dispose  of  it  as  the  owner  directs  or  excuse  his  failure,  and  if  he 
does  not  the  owner  may  hold  him  for  conversion,  or  as  having 
Renewed  the  bailment  on  the  same  terms.''  When  the  bailment 
purpose  is  accomplished  either  party  may  end  the  bailment,  the 
bailor  by  demanding  the  return  of  the  goods,  or  the  bailee  by 
tendering  them  back  to  the  bailor,  in  the  absence  of  legal  excuse 

"Van    Zile    Bailments     (2d    ed.),  '" Rice  v.  Nixon,  97  Ind.  97,  49  Am. 

§  60;  Dale  v.  See,  51  N.  J.  L.  378,  18  Rep.  430;  Sexton  v.  Graham,  53  Iowa 

Atl.  306.  5  L.  R.  A.  583,  14  Am.  St.  181,  4  N.  W.  1090;  Ledyard  v.  Hib- 

688;  Ball  v.  Liney,  48  N.  Y.  6,  8  Am.  bard,  48  Mich.  421,  12  N.  W.  637,  42 

Rep.    511;    Holbrook    v.    Wight,    24  Am.   Rep.  474;   Bretz  v.   Diehle,   117 

Wend.  (N.  Y.)  169,  35  Am.  Dec.  607.  Pa.   St.  589,   11  Atl.  893,  2  Am.   St. 

"Stewart  v.  Stone,  127  N.  Y.  500,  706,  and  note;  note  94  Am.  St.  221, 

28    N.    E.    595,    14   L.    R.    A.    215n ;  and  cases  cited. 

Schouler    Bailments    (3d    ed.),    §   6;  "Benje  v.  Creagh's  Admr.,  21  Ala. 

Van  Zile  Bailments  (2d  ed.).  §  61.  151;  Green  v.  Hollingsworth,  5  Dana 

'*Van    Zile    Bailments     (2d    ed.),  (Ky.)    173.   30  Am.    Dec.   680;   New 

§  60 ;  Atkins  v.  Gamble,  42  Cal.  86,  10  York   L.    E.   &   W.   R.    Co.   v.    New 

Am.  Rep.  282.  Jersey  Elec.  R.  Co..  60  N.  J.  L.  338. 

"Atkins  V.  Gamble,  42  Cal.  86,  10  38    Atl.    828;    Cobb    v.    Wallace.    5 

Am.  Rep.  282.  Cold.  (Tenn.)  539,  98  Am.  Dec.  435a 


DEFINITIONS   AND   PRINCIPLES.  1 9 

for  non-delivery.^®  As  in  the  case  of  other  contracts,  a  baiknent 
may  be  terminated  at  any  time  by  the  mutual  agreement  of  the 
parties/^  Where  the  bailment  is  for  no  fixed  time,  or  is  for  the 
sole  benefit  of  the  bailor,  he  may  terminate  it  at  any  time.®"  But 
where  the  bailment  is  for  the  sole  benefit  of  the  bailee,  the  bailor 
may  not  terminate  it  in  such  a  manner  or  at  such  a  time  as  to  seri- 
ously injure  the  bailee,  with  no  particular  benefit  to  himself.®^ 
If  the  bailment  is  for  mutual  benefit,  the  bailor  may  not  tenninate 
the  contract  except  for  a  breach  of  the  contract  or  unwarranted 
action  inconsistent  therewith  on  the  part  of  the  bailee.®"  The 
bailee  has  always  the  power  to  terminate  the  bailment  and  at  law 
the  bailor  cannot  compel  the  performance  of  the  contract,  nor  will 
equity  ordinarily  decree  the  performance  of  personal  services.®^ 
But  usually  the  bailee  has  no  right  to  do  so,  except  in  the  case  of  a 
commodate  for  his  own  benefit,  when  he  can  terminate  the  con- 
tract at  any  time  by  redelivery,  and  a  gratuitous  depositary  or 
mandatary  may  usually  terminate  the  contract  upon  reasonable 
notice  to  the  bailor,  by  redelivery,  but  he  has  no  right  to  abandon 
the  undertaking  to  the  injury  of  the  bailor.®*  The  bailment  may 
be  terminated  by  operation  of  law,  as  where  the  status  of  the 
parties  is  changed,  by  the  bailee  becoming  the  owner  of  the  prop- 
erty®^ or  one  of  the  parties  on  whom  the  performance  of  the  bail- 
ment purpose  depends  becoming  incompetent,  as  by  bankruptcy, 
or  insanity,  or  by  the  marriage  of  a  woman  under  the  common 
law.®®    So  the  death  of  either  of  the  parties  will  terminate  the 

The  negligent  delivery  to  the  wrong  Green     v.     Hollingsworth,     5     Dana 

person    of    a    parcel    by    the    bailee's  (Ky.)   173,  30  Am.  Dec.  680;  Crump 

agents   for  its   delivery   is  a  conver-  v.  Mitchell,  34  Miss.  449;  Sargent  v. 

sion.     Murry  v.   Postal  Tel.  &c.  Co.,  Gile,    8    N.    H.    325;    Wentworth    v. 

210  Mass.  188,  96  N.  E.  316.  McDuffie,    48    N.    H.    402;    King   v. 

'*See   cases  cited   in   note  11,   and  Bates,  57  N.  H.  446;  Dunham  v.  Lee, 

Chattahoochee  Nat.   Bank  v.   Schley,  24  Vt.  432;  Swift  v.  Moseley,  10  Vt. 

58  Ga.  369 ;   Morse  v.  Androscoggin  208,  Zl  Am.  Dec.  197. 

R.  Co.,  39  Maine  285;  Ouderkirk  v.  *"  See    Goddard    Bailments,    §    27; 

Central  Nat.  Bank,  119  N.  Y.  263,  23  Story  Bailments   (9th  ed.),  202,  258, 

N.  E.  875.  271. 

"•Story  Bailments  (9th  ed.),  §§  418,  "Goddard  Bailments,  §  27;  Rouls- 

418a.  ton   v.    McClelland,    2    E.    D.    Smith 

'"Cobb  V.  Wallace,  5  Cold.  (Tenn.)  (N.  Y.)  60. 

539,  98  Am.  Dec.  435n.     See  Smith  v.  '^Van    Zile    Bailments     (2d    ed.), 

Niles,  20  Vt.  315,  49  Am.  Dec.  782.  §  81 ;  Goddard  Bailments,  §  ZZ. 

"Miller  V.   Dayton,  94  Minn.   340,  *" Goddard   Bailments,   §   32;   Story 

102  N.  W.  862.  Bailments    (9th  ed.).   §   206;   Parker 

^ Story  Bailments  (9th  ed.),  §  413;  v.  Smith,  16  East  382;  Minett  v.  For- 


20  BAILMENTS. 

contract  unless  it  is  of  a  nature  that  can  be  performed  by  the 
personal  representative  of  the  deceased.^^  So  where  the  subject 
of  the  bailment  is  destroyed  the  contract  is  terminated,  for 
there  is  then  nothing  upon  which  the  bailment  purpose  can  be 
accomplished,  but  the  liabilities  of  the  parties  would  be  gov- 
erned by  the  general  rules  before  mentioned.^^  And  in  many 
cases  the  effect  as  to  the  termination  of  the  contract  by  any  of  the 
happenings  above  mentioned  depends  upon  the  character  of  bail- 
ment. 

§  22.  Form  of  action  and  burden  of  proof. — The  bailor 
may  as  a  rule  bring  an  action  either  in  contract  or  in  tort  for  loss 
or  injury  to  the  goods  in  the  possession  of  the  bailee.^^  The 
weight  of  modern  authority  holds  the  rule  to  be  that  where  the 
bailor  has  shown  that  the  goods  were  received  in  good  condition 
by  the  bailee  and  were  returned  by  him  in  an  injured  or  damaged 
condition,  or  were  not  returned  or  delivered  over  at  all,  he  has 
made  out  a  case  of  prima  facie  negligence  or  misconduct  against 
the  bailee,  if  ordinarily  such  injury  or  loss  could  not  have  oc- 
curred without  negligence  on  the  part  of  the  bailee,  and  the 
bailee  must  show  that  the  loss  or  damage  was  caused  without 
his  fault.^*    The  effect  of  this  rule  is  not  to  shift  the  burden  of 

Tester,  4  Taunt.  541;  Ex  parte  New-  PI.  151;  Coal  Co.  v.  Richter,  31  W. 

hall,  2  Story  360;  Van  Zile  Bailments  Va.  858,  8  S.  E.  609.     See  Hackney 

(2d  ed.),  §  83.  v.  Perry,  152  Ala.  626,  44  So.  1029; 

*' Story  Bailments  (9th  ed.),  Rhodes  &c.  Co.  v.  Freeman,  2  Ga. 
§§  202-205,  277,  418,  419;  Schouler  App.  473,  58  S.  E.  696;  Redel  v.  Mis- 
Bailments  (3d  ed.),  §  156;  Farrow  v.  souri  Valley  Stone  Co.,  126  Mo.  App. 
Bragg's  Admr.,  30  Ala.  261 ;  Mecart-  163,  103  S.  W.  568. 
ney  v.  Carbine,  108  111.  App.  282;  **  Schouler  on  Bailments  (3d  ed.), 
Marvel  v.  Philips,  162  Mass.  388,  38  §  23 ;  Schouler  Bailments  including 
N.  E.  1117,  26  L.  R.  A.  416,  44  Am.  St.  Carriers  (1905),  §  12;  Hale  Bail- 
370;  McKeown  v.  Harvey,  40  Mich,  ments,  p.  31;  Pratt  v.  Waddington, 
226;  Bambrick  v.  Webster  Groves'  23  Ont.  L.  R.  178,  21  Ann.  Cas.  840, 
Assn.,  53  Mo.  App.  225 ;  Blount  v.  and  cases  cited  in  note ;  Hackney  v. 
Hamey,  43  Mo.  App.  644;  Morris  v.  Perry,  152  Ala.  626,  44  So.  1029; 
Lowe,  91  Tenn.  243,  36  S.  W.  1098;  Haas  v.  Taylor,  80  Ala.  459,  2  So. 
Fulton  v.  Denison  Nat.  Bank,  26  Tex.  6ZZ ;  Boies  v.  Hartford  &  N.  H.  R. 
Civ.  App.  115,  62  S.  W.  84;  Hunt  v.  Co.,  Zl  Conn.  272,  9  Am.  Rep.  347; 
Rousmanier's  Admrs.,  8  Wheat.  (U.  Johnson  v.  Perkins,  4  Ga.  App.  633, 
S.)    174,  5  L.   ed.  589.  62  S.  E.  152;  Bates  v.  Capital  State 

*'New  York  L.  E.  &  W.  R.  Co.  v.  Bank,   18   Idaho   429,    110    Pac.   277; 

New  Jersey  &c.  R.  Co.,  60  N.  J.  L.  Cumins  v.  Wood,  44  111.  416,  92  Am. 

338,  38  Atl.  828;  Goddard  Bailments,  Dec.  189;  Funkhouser  v.  Wagner,  62 

§  'i'^-  111.  59;  Lichtenhein  v.  Boston  &c.  R. 

**  Schouler      Bailments       including  Co.,  11  Cush.  (Mass.)  70;  Yazoo  &c. 

Carriers  (1905),  §  12,  citing  1  Chitty  R.  Co.  v.  Hughes,  94  Miss.  242,  47 


DEFINITIONS   AND    PRINCIPLES.  21 

proof  from  the  plaintiff  to  the  defendant,  but  simply  the  burden 
of  proceeding.  The  plaintiff  must  in  all  instances  prove  that  the 
bailee  was  negligent,  but  when  he  shows  that  the  goods  were  in- 
jured while  in  the  hands  of  the  bailee,  or  were  not  delivered  upon 
demand,  he  has  made  out  a  prima  facie  case,  or  created  a  pre- 
sumption of  negligence,  which  the  defendant  may  overcome  by 
offering  evidence  to  show  that  he  was  not  negligent,  or  by  show- 
ing that  the  cause  of  the  loss,  injury  or  nondelivery  was  fire, 
theft,  accident  or  some  other  excusable  cause,  and  if  he  produces 
such  evidence,  the  plaintiff  in  order  to  make  out  his  case  must 
show  that  the  defendant  was  in  fact  negligent,  and  that  his  neg- 
ligence caused  the  loss  or  contributed  thereto.  It  has  been  held 
that  the  bailee  has  sufficiently  exonerated  himself  from  liability 
when  he  has  shown  that  the  cause  of  the  loss  was  a  mystery.®^ 

§  23.  Distinction  between  bailment  and  debt,  sale  or  gift, 
' — In  the  civil  law  there  was  a  contract  known  as  the  mutuum,  or 
the  loan  of  consumable  goods,  in  which  the  recipient  of  the  goods 
was  to  return,  not  the  same  identical  property  as  in  the  case  of 
a  bailment,  but  other  goods  of  the  same  kind.®"  Under  the  com- 
mon law  this  would  not  be  a  bailment,  but  a  sale,  which  is  a 
transfer  of  the  absolute  or  general  property  in  a  thing  for  a 
price.®^  The  distinction  between  bailment  and  sale  is  clear.  In 
bailment  the  title  to  the  property  does  not  pass  to  the  bailee,  but 

So.  662,  22  L.  R.  A.  (N.  S.)  975n;  "Sanford  v.  Kimball,  106  Maine 
Levi  V.  Missouri  &c.  R.  Co.,  157  Mo.  355,  76  Atl.  890,  138  Am.  St.  345. 
App.  536,  138  S.  W.  699;  Wiser  v.  "'Street,  Foundations  of  Legal 
Chesley,  53  Mo.  547;  Sulpho-Saline  Liability,  vol.  2,  p.  3;  Schouler  Bail- 
Bath  Co.  V.  Allen,  66  Nebr.  295,  92  ments  (3d  ed.),  §  6;  Hale  Bailments, 
N.  W.  354,  1  Am.  &  Eng.  Ann.  Cas.  p.  8.  When  an  identical  thing  is  to 
21,  and  note ;  Collins  v.  Bennett,  46  N.  be  restored,  though  in  an  altered 
Y.  490 ;  Wintringham  v.  Hayes,  144  N.  form,  the  contract  is  one  of  bailment, 
Y.  1,  38  N.  E.  999,  43  Am.  St.  725 ;  Sey-  but  when  the  obligation  is  to  restore 
bolt  V.  New  York  L.  E.  &  W.  R.  Co.,  other  things  of  the  like  kind,  and 
95  N.  Y.  562;  Hasbrouck  v.  New  equal  in  value,  it  becomes  a  debt. 
York  Central  R.  Co.,  137  App.  Div.  Wetherell  v.  O'Brien,  140  111.  146,  33 
(N.  Y.)  532.  122  N.  Y.  S.  123;  Allen  Am.  St.  221.  See  Baker  v.  Priebe, 
V.  Fulton  Motor  Car  Co.,  128  N.  Y.  59  Nebr.  597,  81  N.  W.  609;  Smith 
S.  419,  71  Misc.  190;  Oswego  Bank  v.  Clark,  21  Wend.  (N.  Y.)  83,  34 
V.  Dovle,  91  N.  Y.  32,  43  Am.  Rep.  Am.  Dec.  213n;  Carpenter  v.  Griffin, 
634;  Safe  Deposit  Co.  v.  Pollock.  85  9  Paige  (N.  Y.)  310,  37  Am.  Dec. 
Pa.  St.  391.  27  Am.  Rep.  660;  Glea-  396. 

son  V.  Beers'  Estate,  59  Vt.  581,   10        "'Benjamin   Sales    (7th   ed.),   §    1; 

Atl.  86,   59  Am.   Rep.  757;   Pregent  Tiffany  Sales  (1908),  1. 
V.  Mills,  5J  Wash.  187,  98  Pac.  328. 


2.2  BAILMENTS. 

only  the  possession;  in  a  sale  the  title  passes  to  the  vendee  at 
once.  But  in  actual  practice  it  is  difficult  to  determine  in  many 
instances  whether  a  transaction  constitutes  a  bailment  or  a  sale. 
As  we  have  seen,  where  grain  in  a  warehouse  is  commingled  with 
the  grain  of  others,  even  though  redelivery  of  the  exact  grain  is 
impossible,  the  transaction  is  held  a  bailment,  and  the  title  to  the 
grain  remains  in  the  one  who  deposited  it  in  the  warehouse,  the 
depositors  being  held  owners  in  common  of  the  common  mass.^* 
So  the  general  rule  is  that  where  goods  are  delivered  to  be 
manufactured  and  the  product  returned,  it  is  a  bailment."^  Where 
animals  are  left  on  shares,  the  same  animals  to  be  returned,  it  is 
a  bailment  ;^^  if  an  equal  number  of  Hke  value,  it  is  a  sale." 
There  may  be  a  bailment  with  the  option  of  purchasing,®^  or  a 
bailment  for  the  purpose  of  sale,®**  and  perhaps  the  most  difficult 
distinction  to  be  made  is  between  such  bailments  as  these  and 
conditional  sales.  In  a  recent  case  it  was  said  as  to  the  distinc- 
tion, "In  bailment  the  identical  thing  delivered  is  to  be  restored, 
or  the  proceeds  after  sale.  In  a  sale  there  is  an  agreement,  ex- 
press or  implied,  to  pay  money  or  its  equivalent  for  the  thing 
delivered,  and  there  is  no  obligation  to  return.  Has  the  sender 
the  right  to  compel  a  return  of  the  thing  sent,  or  has  the  receiver 

•*  See  cases  cited   in  note  Id.  Humphreys,  10  Pa.  St.  217 ;  Brown  v. 

*A  mere  bailment,  and  not  a  sale  Hitchcock,  28  Vt.  452;  note,  94  Am. 

which   passes   title,    is   created   by   a  St.  216,  et  seq.     But  compare  Prich- 

contract  under  which  farmers  deliver  ett  v.  Cook,  62  Pa.  St.  193;  Buffum  v. 

produce  at  a  factory  owned  by  one  Merry,  3   Mason    (U.   S.)   478,   Fed. 

of    them,    to    be    manufactured    into  Cas.  No.  2112;  Laflin  &  Rand  Pow- 

pickles  and  similar  articles,  the  pro-  der  Co.  v.  Burkhardt,  97  U.  S.  110, 

ceeds  of  the  sales  of  which  are  to  be  24  L.  ed.  973. 

divided  in  a  certain  ratio  between  the  *'  Robinson  v.   Haas,   40  Cal.   474 ; 

farmers  and  the  manufacturer,  espe-  Woodward  v.  Edmunds,  20  Utah  118, 

cially  where  the  intention  of  the  par-  57    Pac.    848;    Manti    City    Savings 

ties  was  to  create  a  bailment.    Sat-  Bank  v.   Peterson,  30   Utah  475,   86 

tier  V.  Hallock,  160  N.  Y.  291,  54  N.  Pac.  414,  116  Am.  St.  862. 

E.  667.  46  L.  R.  A.  679,  11  Am.  St.  »' Wilson  v.  Finney,  13  Johns.  (N. 

686.    Where  one  party  was  to  furnish  Y.)  358. 

part  of  the  materials,  to  which  the  '^McCall   v.    Powell,   64   Ala.   254; 

second  party  was  to  add  other  mate-  cases  cited  94  Am.  St.  226n ;  Wiggins 

rials,  and  to  perform  work  and  labor  v.  Tumlin,  96  Ga.  753,  23  S.  E.  75; 

so  as  to  manufacture  shears  for  the  Dunlap  v.  Gleason,  16  Mich.  158,  93 

first  party,  it  was  a  bailment.     Mack  Am.  Dec.  231 ;  Sargent  v.  Gile.  8  N. 

V.  Snell,  140  N.  Y.  193.  35  N.  E.  493,  H.  325;   Hamilton  v.   Billington.   163 

37  Am.  St.  534n.    See  Barker  v.  Rob-  Pa.   St.  76.  29  Atl.  904.  43  Am.   St. 

erts,  8  Greenl.    (Maine)    101;   Pierce  780;  Barnett  v.  Fein,  41   Pa.   Super. 

V.  Schenck,  3  Hill  (N.  Y.)  28;  Stew-  t\.  423. 

art  v.   Stone,   127  N.  Y.  500,  28  N.^'     »»JFleet  v.   Hertz,  20JLIU.  594,  66 

E.  595,  14  L.  R.  A.  21Sn;  King  v.  N.     E.     858,    94    Am.  ^St~T92n; 


DEFINITIONS    AND    PRINCIPLES.  23 

the  option  to  pay  for  the  thing  in  money  ?"^  In  any  case  the 
answer  to  the  last  question  is  perhaps  the  best  test  of  whether  a 
transaction  is  a  sale  or  a  bailment.  A  gift  is  distinguished  from 
a  bailment  by  the  fact  that  a  gift  passes  ownership  and  not  pos- 
session only."  Where  the  relationship  of  debtor  and  creditor 
exists,  then  there  is  an  absolute  obligation  upon  the  debtor  to 
return  a  sum  of  money  to  the  creditor,  but  there  may  be  a  bail- 
ment of  money  for  custody,  if  the  identical  money  received  was 
simply  to  be  kept  and  returned,  and  it  has  been  held  that  there 
may  be  a  bailment  of  money  when  it  is  not  agreed  or  intended 
that  the  identical  money  shall  be  returned.^ 

Sturtevant      Co.      v.      Dugan.      106  also,  Lippincott  v.  Scott,  198  Pa.  283, 

Md.  587,  68  Atl.  351,  14  Am.  &  Eng.  47  Atl.  1115.  82  Am.  St.  801;  Brown 

Ann.  Cas:i575;  Chesterfield  Mfg.  Co.  v.  BiUington,  163  Pa.  St.  76,  29  Atl. 

V.  Dehon,  5  Pick.  (Mass.)  7,  16  Am.  904,    43   Am.    St.   780;    Wheeler   &c. 

Dec.   367;   Walker   v.   Butterick,    105  Mfg.    Co.    v.    Heil,    115    Pa.    487,    3 

Mass.  237 ;  Barnes  Safe  &  Lock  Co.  Atl.  616,  2  Am.  St.  575 ;  note,  94  Am. 

V.   Bloch  Bros.   Tobacco   Co.,   38   W.  St.    234-258;    In    re    A.    Gaglione    & 

Va.   158,   18  S.  E.  482,  22  L.  R.  A.  Son,  200  Fed.  81. 

850n,  45  Am.  St.  846.  'Van  Zile  Bailments  (2d  ed.),  §  25. 

^Sturtevant  Co.  v.  Dugan,  106  Md.  ^Knapp   v.    Knapp,    118   Mo.   App. 

587,  68  Atl.  351,  14  Am.  &  Eng.  Ann.  685,  96  S.  W.  295.     For  other  cases 

Cas.  675,  citing  In  re  Gait,  120  Fed.  64,  involving    bailments    of    money,    se« 

56  C.  C.  A.  470 ;  In  re  Columbus  Buggy  Stevens    v.    Stevens,    132    Mo.    App. 

Co..   143  Fed.  859,  74  C.  C.  A.  611;  624,  112  S.  W.  35;  Patriska  v.  Kronk. 

John   Deere   Plow   Co.   v.   McDavid,  57  Misc.   (N.  Y.)  552,  109  N.  tY.  S. 

137  Fed.  802,  70  C.  C.  A.  422.    See  10^ 


CHAPTER  II. 

GRATUITOUS   BAILMENTS. 

§24.  For    benefit    of    bailor — De-  §32.  Bailee's  rights  against  bailor 

fined    and    distinguished.  or  third  parties. 

25.  Mandates.  33.  The    finder   of    lost   property. 

26.  Deposits.  34.  Special    bank    deposits. 

27.  Delivery   and   acceptance.  35.  Termination    of    relation   and 

28.  Use  of  the  property  and   ex-  redelivery. 

penses.  36.  For  benefit  of  bailee — Gratu- 

29.  Bailee's      duty      to      perform  itous      loans — The     commo- 

bailment    contract.  date. 

30.  Care  to  be  used  by  bailee  in         37.  Creation    of   the   relation. 

accomplishing      the        bail-         38.  Bailee's    rights     and     obliga- 
ment    purpose.  tions. 

31.  Effect  of   failure  to  obey  in-         39.  Bailor's  rights  and  duties. 

structions,   or   to   give   spe-         40.  The    care    demanded    of    the 
cial    care    with    notice    that  bailee, 

such    is   necessary.  41.  Redelivery. 

§  24.  For  benefit  of  bailor — Defined  and  distinguished. 
— ^The  distinguishing  characteristic  of  this  class  of  bailments  is 
that  the  bailee  receives  no  benefit  from  or  recompense  for  the 
accomplishment  of  the  bailment  purpose,  and  since  this  is  true,  is 
held  to  a  less  degree  of  care  in  its  performance  than  in  the  other 
classes  of  bailments.  These  bailments  include  the  same  kinds  of 
services  that  are  embraced  in  contracts  of  hiring,  that  is,  i,  keep- 
ing the  property  in  custody,  or  deposit ;  2,  performing  work  upon 
a  thing,  and  3,  carrying  a  thing  from  place  to  place,  these  latter 
kinds  coming  under  the  one  classification  of  mandate.  In  both 
deposit  and  mandate  there  must  be  labor  perfonned  to  a  certain 
extent  upon  the  subject  of  the  bailment,  but  the  distinction  is,  as 
stated  by  Judge  Story,  that  in  case  of  a  deposit,  the  principal 
object  is  the  keeping  of  the  thing,  and  any  services  connected 
with  such  custody  are  merely  accessorial ;  while  in  case  of  a  man- 
date, the  principal  object  is  the  performance  of  services,  and  the 
custody  is  merely  accessorial.^    If  there  is  the  slightest  benefit  or 

*  Story  Bailments  (9th  ed.),  §41, 
et  seq. 

24 


GRATUITOUS    BAILMENTS.  25 

recompense  to  the  bailee,  the  bailment  is  held  one  for  mutual 
benefit,  and  the  bailee  is  held  to  the  care  demanded  in  bailments 
for  mutual  benefit,  so  that  it  frequently  becomes  important  to 
decide  whether  any  benefit  is  received  by  him,  even  indirectly. 
So  it  is  held  that  the  bailment  is  one  of  mutual  benefit  if  it  was 
undertaken  at  the  request  of  the  bailee,  as  where  upon  invitation 
of  a  society  in  charge  property  was  sent  to  a  fair  for  exhibition.^ 
And  the  same  rule  applies  if  there  is  no  direct  compensation  for 
the  bailment,  but  it  is  an  incident  of  an  occupation  conducted  for 
profit,  application  of  this  rule  holding  a  clothing  merchant  liable 
for  the  ordinary  care  of  articles  of  clothing  removed  by  prospect- 
ive customers  while  trying  on  garments  in  his  shop,^  and  the  pro- 
prietor of  a  bath  house  under  a  similar  duty  as  to  valuables  which 
his  patrons  deposited  in  his  keeping  while  bathing,  and  for  the 
care  of  which  he  received  no  direct  compensation.* 

§  25.  Mandates. — The  Roman  mandatum  was  not  an 
entirely  similar  relation  to  the  mandate  of  the  English  law  of 
bailments,  for  under  the  Roman  law  the  mandatary  might  under- 
take to  deliver  an  oral  message  gratuitously,  and  was  in  fact  a 
gratuitous  agent. °  The  mandate  inust  be  created  by  contract, 
but  this  contract  may  be  verbal  or  in  writing,  or  may  in  certain 
circumstances  be  implied.® 

§  26.  Deposits. — The  depositum  of  the  Roman  law  was 
a  relation  including  more  than  our  deposit,  which  is  a  mere  naked 
bailment  of  goods  to  be  kept  without  reward  and  returned  to  the 
bailor  on  demand.'  In  the  law  of  bailments,  the  term  "deposit" 
has  a  restricted  meaning.  This  is  evidenced  in  the  case  of  bank 
deposits.    The  ordinary  bank  deposit  is  not  a  bailment,  but  a  loan, 

'Prince  v.  Alabama  State  Fair,  106  89,  6  L.  R.  A.  (N.  S.)  S2Sn,  115  Am. 

Ala.  340,  17  So.  449,  28  L.  R.  A.  716;  St.    114.     See   cases   cited   in   note, 

Vigo  Agricultural    Society  v.   Brum-  §  84,   infra. 

fiel,  102  Ind.  146,  1  N.  E.  382,  52  Am.        "  Goddard    Bailments,    §    42 ;    Van 

Rep.  657.  Zile  Bailments  (2d  ed.),  §  85;  Schou- 

*See  Woodruff  v.  Painter,  150  Pa.  ler  Bailments  (3d  ed.),  §  26. 
St.  91,  24  Atl.  621,  16  L.  R.  A.  451.        •'Story  Bailments  (9th  ed.),  §  160; 

See   cases   cited  under   note,   §   84,  Van  Zile  Bailments  (2d  ed.),  §  85. 
infra.  ^  Bates   v.    Capital    State    Bank,    18 

*Walpert  v.  Bohan,  126  Ga.  532,  55  Idaho  429,  110  Pac.  277. 
S.  E.  181,  8  Am.  &  Eng.  Ann.  Cas. 


26  BAILMENTS. 

since  the  same  money  deposited  is  not  to  be  returned.  Neither  is 
it  gratuitous,  for  the  bank  has  the  use  of  the  money.*  But  the 
relation  of  a  gratuitous  bailee  sometimes  exists  as  to  special  de- 
posits in  a  bank  for  custody.  The  relation  of  deposit  is  one  of 
contract,  but  often  of  implied  contract,  and  not  express,  as  in  the 
instance  of  the  finder  of  lost  property,  or  the  public  officer  who 
is  by  law  made  the  depositary  of  funds,  or  the  sheriff  who  seizes 
goods,  or  the  clerk  of  court  to  whom  money  is  paid  as  a  specific 
deposit,  or  a  stake  holder  of  property.**  These  latter  relations  are 
often  spoken  of  as  quasi-deposits.  There  are  also  bailments  by 
operation  of  law  which  are  called  involuntary  deposits,  and  which 
arise  when  the  goods  of  one  person  have  by  an  unavoidable  acci- 
dent or  casualty  been  deposited  upon  another's  land,  as  where  cast 
upon  another's  land  by  a  freshet,  or  blown  there  by  a  tempest  or 
tornado ;  and  the  owner  of  land  is  under  a  duty  as  to  such  goods 
similar  to  that  of  the  finder  of  lost  property.^" 

§  27.     Delivery  and   acceptance. — Delivery   in   this   class 

of  bailments  is  physical,  since  the  bailee  must  have  actual  pos- 
session in  order  to  be  charged  as  bailee,  but  it  may  be  constructive, 
as  where  the  goods  were  already  in  the  possession  of  the  bailee 
for  some  other  purpose."  Acceptance  must  be  voluntary,  for 
no  man  can  be  compelled  involuntarily  to  become  a  gratuitous 
bailee,  and  the  finder  of  lost  property  is  not  chargeable  except  he 
voluntarily  take  charge  of  such  property,  for  he  may  leave  it 
where  he  found  it,  and  not  become  a  bailee.^^    Perhaps  an  excep- 

" Story  Bailments   (9th  ed.),  §§  84,  holders";  Story  Bailments  (9th  ed.), 

88:    Wright  v.    Paine,   62   Ala.   340;  §§  45,  103,  124;  In  re  Western  Marine 

Howard    v.    Roeben,    33    Cal.    399;  &  Fire  Ins.  Co.,  38  111.  289;  Mott  v. 

Brahm  v.  Adkins.  77  111.  263;  Foster  Pettit,  1  N.  J.  L.  298. 

V.  Essex  Bank,  17  Mass.  479,  9  Am.  '"Story  Bailments  (9th  ed.),  §  83a; 

Dec.   168-  Rankin  v.  Craft,  1  Heisk.  Goddard  Bailments,  §  47;  Hale  Bail- 

(Tenn.)    711;    Miller   J.,    in    Marine  ments,  p.  44;   Anthony  v.   Haney,  8 

Bank  V.   Fulton   Bank,   2  Wall.    (U.  Bing.  186;  Mitten  v.  Fandrye,  Poph. 

S)  25^    17  L    ed   785  161,   Latch    13;    Nicholson   v.    Chap- 

"Schouler  Bailments   (3ded.),§28;  man,  2  H.  Bl.  254;  Walker  v.  Nor- 

Story   Bailments    (9th   ed.),    §    124;  folk  &c.  R.  Co.,  67  W.  Va.  273,  67  S. 

Harrington  v.  King.   121   Mass.  269;  E.  722.                                        ,  ^   „  <,^ 

State    V.    Fitzpatrick,    64    Mo.    185;  "  Schouler  Bailments  (3d  ed.).  §  32; 

Cross  V.  Brown,  41  N.  H.  283:  Burke  Story    Bailments    (9th    ed.),    §§    51, 

V.  Trevitt,  1  Mason  (U.  S.)  96.  Fed.  141;  Coggs  v.  Bernard,  2  Ld.  Raym. 

Cas.   No    2163:   Thayer  v.   Hutchin-  909. 

son,   13  Vt.   504,  37  Am.  Dec.  607;  "Drake   v.    Shorter,   4   Esp.    165; 

Bouv.  Diet.,  "Sequestration,"  "Stake-  Kohler  v.  Hayes,  41  Cal.  455;  Bobo 


GRATUITOUS    BAILMENTS.  2^ 

tion  must  be  made  in  the  case  of  "involuntary  depositaries"  who 
become  bailees  through  the  force  of  natural  circumstances  over 
which  they  have  no  control. 

§  28.  Use  of  the  property  and  expenses. — The  deposi- 
tary has  generally  no  right  to  u-se  the  property  deposited,  except 
so  far  as  the  use  of  the  thing  is  necessary  to  its  preservation,  or 
incidental  to  the  proper  performance  of  his  duties;  thus  a  cow 
must  be  milked,  and  a  horse  given  exercise."  If  the  bailee  were 
to  gain  advantage  from  the  use,  the  bailment  would  cease  to  be 
gratuitous.  The  depositary  who  uses  the  property  more  than  is 
contemplated  by  the  contract  of  bailment  is  liable  in  breach  of 
contract,  or  in  some  instances  for  conversion.^'*  Bailees  for  the 
sole  benefit  of  the  bailor  are  entitled  to  recover  from  the  bailor 
all  expenses  necessarily  incurred  in  preserving  a  deposit,  or  in 
carrying  out  a  mandate.^^  If  the  bailee  has  contracted  with  a 
third  party  for  any  necessary  services,  such  contract  is  binding 
upon  the  bailor.^*^  If  the  expenses  were  reasonably  incurred,  the 
bailor  is  liable,  even  if  they  were  more  than  he  would  have  paid, 
unless  they  were  caused  by  the  bailee's  fault.^^ 

§  29.  Bailee's  duty  to  perform  bailment  contract. — The 
rule  is  settled  that  after  one  has  undertaken  the  performance  of 
a  gratuitous  bailment,  he  is  under  a  legal  liability  for  its  proper 
performance  under  the  circumstances,  and  thus  may  be  held  by 
the  bailor  for  his  misfeasance;  but  if  he  has  merely  agreed  to 
undertake  the  performance,  he  is  not  liable  for  a  failure  to  enter 

V.  Patton,  6  Heisk.   (Tenn.)    172,  19  rath,  54  Md.  491,  39  Am.   St.  397; 

Am.  Rep.  593;   Sturm  v.  Boker,   150  King  v.  Bates,  57  N.  H.  446;  Keiner 

U.  S.  312,  Zl  L.  ed.  1093,  14  Sup.  Ct.  v.  Folsom,  79  N.  Y  S.  1099;  Dale  v. 

99.     The  gratuitous  bailee  must  as-  Brinckerhoff,    7    Daly    (N.    Y.)    45; 

sent  to  the  bailment  expressly  or  im-  Cicalla  v.   Rossi,   10   Heisk.    (Tenn.) 

pliedly    before    the    relationship    of  67. 

bailor  and  bailee  is  established.  Bios-  ^^  Story  Bailments    (9th  ed."),  §§  121, 

ser  Co.  V.  Doonan,  8  Ga.   App.  285,  154;    Schouler    Bailments     (3d    ed.), 

68  S.  E.  1074.  §    63;    Devalcourt    v.    Dillon.    12   La. 

"Jones    Bailments,    80,    81;    Story  Ann.    672;    Harter   v.    Blanchard,   64 

Bailments   (9th  ed.),   §  90;   Schouler  Barb.  (N.  Y.)  617. 

Bailments    (3d  ed.),   §  52;   Mores  v.  ^^  Story  Bailments  (9th  ed.).  §  198; 

Conham,   Owen   123;   Anon.,  2   Salk.  Harter  v.    Blanchard,  64   Barb.    (N. 

521.  Y.)  617. 

"Clark  V.  Whitaker,  19  Conn.  319,  "Story  Bailments  (9th  ed.),  §  197. 
48  Am.  Dec.  160;  Schermer  v.  Neu- 


28  BAILMENTS. 

Upon  it.^^  The  reason  for  this  is  that  the  consideration  which 
supports  a  gratuitous  bailment  is  the  deHvery  of  possession  of 
the  subject  of  the  bailment,  and  that  there  is  no  consideration  for 
a  mere  promise  to  undertake  a  bailment ;  and  thus  there  is  no  lia- 
bility until  the  actual  delivery  of  the  property  to  the  bailee. 

§  30.  Care  to  be  used  by  bailee  in  accomplishing  the 
bailment  purpose. — As  was  said  in  a  preceding  section,  the 
bailee  who  undertakes  a  deposit  or  mandate  for  the  bailor's  sole 
benefit,  he  himself  receiving  no  benefit,  is  held  by  the  general 
rule  to  slight  diligence  in  the  performance  of  the  bailment  pur- 
pose.^**  The  test  of  this  must  depend  upon  circumstances,  and 
sometimes  upon  custom.^**  If  it  is  shown  that  the  gratuitous 
bailee  used  the  same  care  that  he  used  with  his  own  goods,  this 
furnishes  a  presumption  that  he  was  not  negligent,"^  yet  he  might 
have  been  so  careless  with  his  own  goods  that  he  used  less  than 
slight  diligence  as  to  their  care.  Some  of  the  cases  hold  such  a 
bailee  to  the  degree  of  care  used  by  men  of  common  prudence 
for  the  protection  of  their  own  property  in  similar  conditions, 
yet  this  rule  seems  to  recognize  no  distinction  between  the  care 
demanded  of  gratuitous  bailees,  and  that  demanded  of  bailees 
upon  recompense.^'  It  would  seem  that  perhaps  the  best  test  is 
the  amount  of  care  which  gratuitous  bailees  are  accustomed  to 
take  of  similar  goods  under  similar  circumstances.-^     If  skill  is 

"Elsee  V.  Gatward,  5  T.  R.   143;  kins    v.    Saltmarsh,    14   Serg.   &    R. 

Tavlor  v.  Plummer.  3  M.  &  S.  562;  (Pa.)  275. 

Morrison  v.  Orr,  3  Stew.  &  P.  (Ala.)  "^  Story  Bailments  (9th  ed.),  §  64 

49;  Thorne  V.  Deas,  4  Johns.  (N.  Y.)  Schouler  Bailments    (3d   ed.),   §   36 

84;    French    v.    Reed,    6    Bin.    (Pa.)  Doorman  v.  Jenkins.  2  Ad.  &  E.  256 

308,    23    Am.    Dec.    319;    Tancil    v.  Coggs  v.  Bernard,  2  Ld.  Raym.  909 

Seaton,  28  Grat.   (Va.)   601,  26  Am.  Kettle    v.     Broomsall,     Willes     118 

Rep.  380.  Shiells  v.  Blackburne,  1  H.  BI.   159 

^^  See  §  16,  supra,  and  cases  cited.  Foster  v.  Essex  Bank,  17  Mass.  479, 

Chicago  Hotel  Co.  v.  Baumann,  131  9  Am.  Dec.   168;  Bland  v.  Womack, 

111.  App.  324;  Stevens  v.  Stevens,  132  2   Murph.    (N.    Car.)    373;  Tracy  v 

Mo.  App.  624,  112  S.  W.  35;  Patriska  Wood,  3  Mas.  (U.  S.)  132. 

V.  Kronk,  57  Misc.   (N.  Y.)  552,  109  =^  Grav  v.  INIerriam,  148  III.  179,  35 

N.  Y.  S.  1092.  N.  E.  810,  32  L.  R.  A.  769,  39  Am.  St. 

"» Schouler     Bailments      (3d     ed.),  172;    Preston  v.    Prather,   137  U.   S. 

§  37;  Batson  v.  Donovan,  4  B.  &  Aid.  604.  34  L.  ed.  788.  11  Sup.  Ct.  162. 

21 ;  Ross  V.  Daugherty,  127  111.  App.  ^  Finucane  v.    Small,    1    Esp.   315 ; 

S72 ;  Eddy  v.  Livingston,  35  J\Io.  487,  Gray  v.  Merriam,  148  111.  179,  35  N. 

88  Am.  Dec.  122 ;  Griffith  v.  Zipper-  E.  810,  32  L.  R.  A.  769n,  39  Am.  St. 

wick  Lodge,  28  Ohio  St.  388;  Temp-  172;  Bean  v.  Ford,  65  Misc.  (N.  Y.) 


GRATUITOUS    BAILMENTS.  29 

required  in  the  carrying  out  of  the  bailment  purpose,  nothing 
more  can  be  demanded  of  the  bailee  than  the  skill  of  the  average 
person  of  the  same  profession  or  occupation  who  undertakes  such 
things,  and  it  seems  that  less  skill  than  this  would  still  be  slight 
skill,  and  all  the  bailor  was  entitled  to  demand,  but  the  failure  to 
use  any  skill  would  be  gross  negligence.-*  Though  some  courts 
have  attempted  to  get  away  from  the  rule  of  slight  diligence  and 
fix  the  degree  of  care  by  the  mutual  understanding  of  the  par- 
ties,-'^ yet  the  rule  supported  by  the  weight  of  authority  is  that 
*'the  bailee's  liability  in  bailments  under  the  present  head  must 
be,  apart  from  special  contract  modifications,  such  a  degree  of 
diligence,  less  than  what  the  average  of  mankind  under  the  same 
conditions  and  circumstances  are  wont  to  exert  with  reference 
to  similar  property,  as  may  be  relatively  termed  slight  diligence ; 
that,  correspondingly,  he  is  liable  only  for  what  the  law  terms 
great  or  gross  negligence;  and  that,  of  course,  for  dishonesty 
and  bad  faith  in  performing  the  transaction,  he  becomes,  as  a 
matter  of  course,  liable.  But  it  is  here  essential  that  the  bail- 
ment be  undertaken  gratuitously  and  without  the  expectation 
of  reward."^*^ 

481,    119   N.    Y.    S.    1074;    Bland    v.  posed   to   extend,    by   inference,    the 

Womack,  2  Murph.    (N.    Car.)    2)7Z;  perils   of  an   unprofitable  trust;   and 

Anderson      v.      Foresman,      Wright  so  every  bailee  without  reward  is  re- 

(Ohio)     508;     Tracy     v.     Wood,     3  garded  as  having  assumed  the  least 

Mason  132.  responsibility  consistent  with  his  ac- 

"*  Shiells   V.    Blackburne,    1    H,    Bl.  tual  undertaking.     Christian  v.  First 

159;  Conner  v.   Winton,  8  Ind.  315,  Nat.  Bank,  155  Fed.  705,  84  C.  C.  A. 

65  Am.  Dec.  761 ;  Gill  v.  Middleton,  53.      Among    cases    which    exemplify 

105  Mass.  477,  7  Am.  Rep.  548 ;  Eddy  the  rule  that  the  gratuitous  bailee  for 

V.    Livingston,    35    Mo.    487,    88   Am.  the  benefit  of  the  bailor  is  liable  for 

Dec.   122;  Stanton  v.   Bell,  2  Hawks  gross  negligence,  are  the   follov.'ing: 

(N.   Car.)    145;    First    Nat.   Bank  v.  In  the  leading  case  of  Coggs  v.  Ber- 

Graham,  79  Pa.  St.  106,  21  Am.  Rep.  nard,    2    Ld.    Raym.    909,    one    who 

49^  gratuitously  undertook  to  carry  casks 

'^  Mariner     v.      Smith,     5      Heisk.  of  brandy  from  one  cellar  to  another 

(Tenn.)  203.  did   the  work   so   carelessly   that   he 

•°  Schouler      Bailments      Including  broke   one  of  the   casks,   spilling  its 

Carriers     (1905),     §  35.      For    cases  contents,  and  was  held  liable  for  the 

holding   to   this    rule,    see    Coggs   v.  loss.      So    a    gratuitous    bailee    who 

Bernard,  2  Ld.   Raym.  909;   Gray  v.  turned    a    horse    after    dark    into    a 

Merriam,  46  111.  App.  2)Z7,  affd.,   148  dangerous    pasture   to   which    it   was 

111.    179,  35   N.    E.  810,   32   L.   R.   A.  unaccustomed  was  liable  for  injuries 

769,  39  Am.  St.  172;  Hibernia  Build-  caused  thereby.     Rooth  v.  Wilson,  1 

ing   Assn.    v.    McGrath.    154    Pa.    St.  B.  &  Aid.  59.     A  person  gratuitous- 

296,  35  Am.  St.  828.     See  cases  cited  ly   undertook  to   carry  two  bags   of 

in  preceding  notes.       It  was  said  in  gold  from  New  York  to  Boston  and 

a  recent  case  that  courts  are  indis-  brought  the  gold  in  a  valise  together 


30 


BAILMENTS. 


§  31.  Effect  o£  failure  to  obey  instructions,  or  to  give 
special  care  with  notice  that  such  is  necessary. — The  bailee 
is  held  to  a  degree  of  diligence  in  obeying  the  instructions  of  the 
bailor,  and  for  loss  caused  by  failure  to  comply  therewith,  under 
circumstances  amounting  to  gross  negligence,  he  is  liable.^^  He 
may  by  special  contract  increase  his  liability,  and  the  law  will 
enforce  it  if  he  is  foolish  enough  to  do  so.^^  If  the  bailee  has  no- 
tice of  facts  requiring  special  care,  the  degree  of  diligence  which 
he  must  use  is  affected  by  his  knowledge  of  such  facts,  as  where 
a  clerk  receipted  for  a  registered  letter  for  a  guest  of  a  hotel,  he 
was  held  to  have  notice  that  the  letter  was  of  more  than  ordinary 
importance  from  the  signing  of  the  receipt,  and  having  put  the 
letter  in  the  hotel  letter  box,  from  which  it  was  stolen,  he  was 


with  gold  money  of  his  own  on 
board  the  vessel  the  night  before  it 
was  to  sail  and  left  it  in  another 
cabin  which  he  occupied.  In  the 
morning  he  found  one  bag  of  gold 
missing,  left  the  valise  on  his  cabin 
table  and  went  to  inform  the  ship's 
authorities.  When  he  returned  he 
found  the  other  bag  missing.  He 
had  been  told  that  if  his  valise  was 
valuable,  he  had  better  give  it  to  the 
clerk.  Though  he  used  the  same  care 
for  the  goods  gratuitously  carried 
that  he  did  for  his  own  the  court 
held  that  it  was  a  question  for  the 
jury  whether  he  had  not  been  guilty 
of  gross  negligence.  Tracy  v.  Wood, 
3  Mas.  (U.  S.)  132.  Sending  loose 
money  through  the  mails  unauthor- 
izedly  may  be  gross  negligence.  Jen- 
kins v.  Bacon,  111  Mass.  27 2>,  15  Am. 
Rep.  32.  One  who  has  allowed  a 
prior  tenant's  stove  to  remain  in  his 
office  for  some  time  and  then  without 
notice  to  the  owner  puts  it  out  in  a 
vacant  lot,  exposing  it  to  injury,  has 
been  guilty  of  gross  negligence.  Burk 
v.  Dempster,  34  Nebr.  426,  51  N.  W. 
976.  But  where  an  applicant  for  a 
license  to  practice  medicine  sent  his 
diploma  to  the  board  of  health  with 
a  request  for  the  issue  of  a  license, 
and  the  board  received  the  diploma, 
and  passed  upon  it,  and  according  to 
their  custom,  placed  it  in  a  mailing 
case,  properly  directed  to  the  appli- 
cant, and  delivered  it  to  the  Adams 
Express  Company  which  had  an  of- 


fice at  the  place  of  sending,  and  at 
the  place  of  delivery  to  the  applicant, 
and  further,  the  applicant  had  given 
no  instructions  as  to  how  the  diploma 
was  to  be  returned,  and  had  not  fur- 
nished funds  to  pay  for  its  return, 
and  the  applicant  received  the  mail- 
ing case,  but  the  diploma  had  been 
lost  from  it,  it  was  held  that  the  se- 
lection of  the  carrier  and  delivery 
of  the  diploma  to  it  for  return  were 
not  actionable  negligence  on  the  part 
of  the  secretaries  of  the  board  ren- 
dering them  personally  liable  for  the 
loss  of  the  diploma.  Whiteside  v. 
Adams  Express  Co.,  89  Nebr.  430, 
131  N.  W.  953. 

"Stewart  v.  Frazier,  5  Ala.  114; 
Ferguson  v.  Porter,  3  Fla.  27;  Fel- 
lowes  V.  Gordon,  8  B.  Mon.  (Ky.) 
415;  McCauley  v.  Davidson,  10  Minn. 
418;  Cannon  R.  Mfg.  Co.  v.  First 
Nat.  Bank,  27  Minn.  394,  34  N.  W. 
741;  Colyar  v.  Taylor,  1  Cold. 
(Tenn.)  372.  A  gratuitous  bailee  is 
bound  to  obey  bailor's  instructions  to 
procure  insurance  on  stored  property. 
Schroeder  v.  Mauzy.  16  Cal.  App. 
443,  118  Pac.  459.  The  rule  that  a 
gratuitous  bailee  is  not  liable  for 
mere  misfeasance  does  not  apply 
when  the  subject  of  the  bailment  has 
been  actually  delivered  and  accepted 
bv  him.  Herzig  v.  Herzig,  67  Misc. 
("N.  Y.)  250,  122  N.  Y.  S.  440. 

""Schouler  Bailments  (3d  ed.), 
§  51 ;  Clark  v.  Gaylord,  24  Conn.  484. 


GRATUITOUS   BAILMENTS.  3 1 

liable  for  the  loss  of  the  money  contained  in  it.-'  But  if  the 
bailor  has  notice  of  the  general  character  and  habits  of  the 
bailee,  and  the  character  of  his  facilities  for  performing  the  bail- 
ment purpose,  he  is  held  to  have  contracted  with  this  in  mind, 
and  if  the  goods  have  been  lost  under  circumstances  so  that 
it  can  be  said  that  he  contracted  for  them  to  be  kept  in  such  man- 
ner, the  bailor  must  bear  the  loss,  for  he  did  not  need  to  trust 
them  to  such  a  bailee.^"  In  fixing  the  duty  of  a  bailee  who  re- 
ceives articles  in  a  sealed  package,  it  is  important  to  ascertain 
whether  he  knew  or  should  have  known  the  character  of  the  con- 
tents, for  what  might  be  high  diligence  in  the  care  of  a  box  of 
old  papers  might  be  gross  negligence  in  the  care  of  a  casket  of 
jewels.^^  And  if  he  did  not  know  their  character,  in  the  absence 
of  fraud  or  concealment  on  the  part  of  the  bailor,  he  is  liable  for 
their  true  value  if  lost  through  his  gross  negligence.^^ 

§32.     Bailee's  rights  against  bailor  or  third  parties. — It 

is  said  that  the  bailor  cannot  be  liable  in  contract  to  the  bailee  for 
damage  sustained  in  executing  the  bailment  contract,  since  if 
danger  was  not  foreseen,  the  bailor  cannot  be  said  to  have  con- 
tracted to  indemnify  the  bailee;  and  if  the  danger  was  foreseen, 
the  bailee  is  held  to  have  assumed  it.^^  So  the  bailor  is  not  liable 
in  tort  unless  in  making  the  bailment  he  knew  of  danger  likely 
to  occur,  and  was  negligent  in  failing  to  warn  the  bailee.^*  The 
gratuitous  bailee  has  a  right  of  possession  sufficient  to  allow  him 
to  bring  an  action  against  a  third  party  for  damage  caused  to  the 
property  bailed,  or  for  trespass  or  conversion.^^ 

^Joslyn  V.   King,  27   Nebr.  38.   42  "^  Hale     Bailments,     p.     54,     citing 

N.  W.  756,  4  L.  R.  A.  457,  20  Am.  Paley,  Moral  Phil.  bk.  3,  ch.  12. 

St.  656.  '*  Jaggard  Torts,  87 ;  Day  v.  Brown- 

^Knowles     v.     Railroad     Co.,     38  rigg,   10  Ch.  Div.  294;   Backhouse  v. 

Maine  55,  61  Am.  Dec.  234 ;  Conway  Bonomi,  9  H.   L.  Cas.  503 ;   Gagnon 

Bank  v.  American  Exp.  Co.,  8  Allen  v.   Dana,  69  N.  H.  264,  39  Atl.  982, 

(Mass.)  512;  Arthur  v.  Railway  Co.,  41    L.    R.   A.   389,   1(i   Am.    St.    170; 

38  Minn.  95,  35  N.  W.  718.  Rich  v.  New  York  Cent.  &  H.  R.  R. 

"Story  Bailments    (9th  ed.),  Ill;  Co..  87  N.  Y.  382. 

Hale  Bailments,  p.  69.  ^^  Schouler    Bailmments     (3d    ed.), 

'-France  v.  Gaudet,  L.  R.  6  Q.  B.  §  54;,  2   Kent  Com.  568,   585;  2  Bl. 

199;  Wilson  v.  Railway  Co.,  9  C.  B.  Com.  395,  452;  Story  Bailments  (9th 

(N.  S.)   631;   Little  v.  Boston  &  M.  ed.),    §§    94,    133;    Armory    v.    Dela- 

R.  R.  Co.,  66  Maine  239;  Mather  v.  mirie,  ]    Strange  505;   Harrington  v. 

American  Express  Co.,  138  Mass.  55,  King.  121  Mass.  269;  Brown  v.  Shaw, 

52  Am.  Rep.  258.  51  Minn.  266,  53  N.  W.  (^ZZ;  Cham- 


32  BAILMENTS. 

§  33,  The  finder  of  lost  property. — The  finder  of  lost 
property  who  takes  the  same  in  his  possession  becomes  the  gra- 
tuitous depositary  for  the  owner  thereof.  His  right  to  the  prop- 
erty is  absolute  as  against  all  the  rest  of  the  world,^^  and  it  has 
often  been  held  that  where  the  property  was  found  in  the  chat- 
tels of  an  employer,  or  on  his  premises,  the  finder's  rights  were 
superior  to  those  of  the  employer.^^  It  seems  that  for  the  mere 
act  of  finding  he  is  entitled  to  no  recompense,  but  for  expendi- 
tures incident  to  finding  it  and  possessing  himself  of  it,  and  ex- 
pended in  good  faith  for  its  care  and  protection,  he  is  entitled  to 
compensation  from  the  owner,  it  being  held  that  he  takes  the 
property  under  an  implied  request  from  the  owner  to  all  persons 
to  take  the  property  and  care  for  it  for  him,  and  to  recompense 
them  for  necessary  expenditures  in  so  doing.^^  The  finder  is  not 
entitled  to  a  lien  upon  the  property  to  secure  his  expenditures, 
unless  it  is  provided  for  by  statute,  as  in  some  cases  where  animals 
astray  or  logs  adrift  are  taken  in,  or  unless  the  owner  has  offered 
a  reward  for  the  return/^  The  liabilities  and  duties  of  the  finder 
of  lost  property  are  in  general  those  of  any  other  gratuitous  de- 
positary. 

§  34.  Special  bank  deposits. — Where  money,  gold, 
stocks,  bonds  or  valuable  papers  are  deposited  with  a  bank  upon 
the  understanding  that  the  identical  thing  shall  be  returned,  it 
is  a  bailment,  and  if  no  recompense  is  charged,  a  gratuitous  bail- 
ment, and  the  bank  is  held  to  the  general  rules  regarding  gratu- 

berlain  v.  West,  37  Minn.  54,  33  N,  could  keep  the  bills   as  against  the 

W.  114;  New  York  &  Harlem  R,  Co.  owner  of  the  safe.)  ;  Bowen  v.  Sul- 

V.  Haws,  56  N.  Y.  175 ;  Abrahamovitz  livan,  62  Ind.  281,  30  Am.  Rep.   172 

V.  New  York  City  R.  Co.,  104  N.  Y.  (where  an  employe  found  money  in 

S.  663;  Galveston  H.  &  S.  A.  R.  Co.  old   rags  which   she  was   sorting  to 

V.  Zantzinger,  93  Tex.  64,  53  S.  W.  make  paper)  ;  Hamaker  v.  Blanchard, 

379,  47  L.  R.  A.  282,  77  Am.  St.  829;  90    Pa.    St.    377,   35    Am.    Rep.    664 

Thayer  v.  Hutchinson,  13  Vt.  504.  (where  a  domestic  servant  found  bills 

^'Lawrence  v.  Buck,  62  Maine  275;  in  a  hotel  parlor). 

Hoagland  v.  Forest  Park  &c.  Amuse-  ^^Reeder  v.   Anderson's   Admrs.,  4 

ment  Co.,  170  Mo.  335,  70  S.  W.  878,  Dana  (Ky.)   193;  Chase  v.  Corcoran, 

94  Am.  St.  740;  Tancil  v.  Seaton.  28  106  Mass.  286. 

Grat.   (Va.)  601,  26  Am.  Rep.  380.  =>' Preston     v.      Neale,      12      Gray 

''Durfee  v.  Jones,  11  R.  I.  588,  23  (Mass.)   222;   Wentworth  v.   Day,   3 

Am.  Rep.  528  (Where  the  depositary  Mete.  (Mass.)  352;  Wood  v.  Pierson. 

of  an  old  safe  to  sell  found  a  roll  45  Mich.  313,  7  N.  W.  888;  4  Cum- 

of  bills  concealed  therein,  the  finder  mings  v.  Gann,  52  Pa.  St.  484. 


GRATUITOUS    BAILMENTS.  33 

itous  bailments  for  the  benefit  of  the  bailor/"  In  the  leading  case 
it  was  held  that  the  bank  was  not  liable  for  the  theft  by  its  cashier 
of  bags  of  gold  on  special  deposit,  because  the  fraud  or  felony 
of  its  agents  was  beyond  the  scope  of  their  employment,  and 
the  bank  was  not  liable,  except  for  their  negligence.''^  But  it  is 
said  that  the  bank  would  be  liable,  if  the  directors  had  knowledge 
of  acts  upon  the  part  of  its  cashier  which  should  put  them  on 
their  guard  against  his  misconduct  toward  depositors.*"  Nor  can 
a  cashier  of  a  bank  bind  the  bank  by  receiving  such  deposits  un- 
less he  has  authority,  express  or  implied,  but  such  authority  may 
be  implied  from  custom  known  to  the  directors.*^  If  the  prop- 
erty is  lost  b}^  burglars  taking  it  from  the  vault,  the  bank  is  not 
liable.'**  Where,  without  consideration,  a  bank  receives  from  a 
money  lender  a  sum  to  be  delivered  to  one  of  his  customers,  on 
a  check  to  be  drawn  by  the  customer,  and  the  bank  pays  the  money 
on  a  check  received  at  the  time  and  under  the  circumstances  as 
agreed,  and  in  the  due  course  of  business,  the  bank  is  merely  a 
gratuitous  bailee  for  the  benefit  of  the  bailor,  and  is  not  liable 
for  the  amount  of  the  money  because  such  check  was  a  forgery, 
if  good  faith  and  ordinary  diligence  were  used  by  it.''^ 

§  35.     Termination  of  relation  and  redelivery. — The  gen- 
eral rules  of  bailments  relating  to  the  termination  of  the  relation 

*"  Foster  v.  Essex  Bank,   17  Mass.  *^Gray  v.  Merriam,  148  111.  179,  35 

479,  9  Am.  Dec.  168;  Smith  v.  First  N.  E.  810,  32  L.  R.   A.  769,  39  Am. 

Nat.  Bank,  99  Mass.  605;  First  Nat.  St.  172;  L'Herbette  v.  Pittsfield  Nat. 

Bank  v.  Ocean  Nat.  Bank,  60  N.  Y.  Bank,    162   Mass.    137,  38  N.   E.   368. 

278,  19  Am.  Rep.  181 ;  Scott  v.  Bank  44  Am.   St.  354 ;  First  Nat.   Bank  v. 

of    Chester   Valley,   72    Pa.    St.   471.  Rex,  89  Pa.  St.  308,  33  Am.  Rep.  767 : 

Special  deposits,  whether  of   money,  Preston  v.  Prather,  137  U.  S.  604,  34 

bonds,  stocks,  or  other  securities,  are  L.  ed.  788,  11  Sup.  Ct.  162. 

imposed  with  such  conditions,   usual  ^  Foster  v.   Essex   Bank,   17  Mass. 

or   unusual,   as   are    dictated   by   the  479,  9  Am.  Dec.  168. 

depositor  and  accepted  by  the  depos-  "^Gerrish  v.   Muskegon   Sav.  Bank, 

itary.     Van    Waggoner    v.    Buckley,  138  Mich.  46,  100  N.  'W.  1000,  4  Ann. 

133  N.  Y.  S.  599.     A  bank  is  liable  Cas.  1083  and  note.     See  also,  Louis- 

for    loss    of    diamonds    received    on  ville  &c.  R.  Co.  v.  Buffington.  131  Ala. 

special   deposit   through   gross  negli-  620,  31  So.  592;  Carlyon  v.  Fitzhenry, 

gence  of  employes.     First  Nat.  Bank  2  Ariz.  266,  IS  Pac.  273. 

V.  Tevis,  29  Okla.  714,  119  Pac.  218.  '"Armour  v.   Greene  County  State 

"Foster  v.  Essex  Bank,  17  Mass.  Bank,  112  Fed.  631.  50  C.  C.  A.  399; 
479,  9  Am.  Dec.  168.  See  cases  cited  Cannon  River  Mfgrs.'  .A.ssn.  v.  First 
above,  and  Chattahoochee  Nat.  Bank  Nat.  Bank,  37  Minn.  394,  34  N.  W. 
V.  Schley.  58  Ga.  369;  First  Nat.  741;  People's  Nat.  Bank  of  King- 
Bank  V.  Graham,  79  Pa.  St.  106,  21  fisher  v.  Wheeler,  21  Okla.  387,  96 
Am.  Rep.  49.  Pac.  619,  21  L.  R.  A.  (N.  S.)  816n. 
Bailments — 3 


34  BAILMENTS. 

and  redelivery  apply  equally  to  bailments  of  the  class  just  con- 
sidered. As  to  the  redelivery,  or  delivery  over,  the  terms  of  the 
bailment  are  ordinarily  controlling/^  A  stakeholder  usually  must 
exercise  some  discretion  or  responsibility  to  ascertain  to  whom 
delivery  should  be  made.*^  The  bailor  may,  of  course,  terminate 
the  bailment  at  will,  and  a  depositary  without  hire  may  terminate 
the  bailment  at  pleasure,  upon  giving  reasonable  notice  to  the 
owner,  unless  he  has  contracted  to  keep  the  goods  for  a  fixed 
time/*  A  gratuitous  bailee  must  redeliver  to  the  proper  person, 
at  peril  of  being  held  for  a  conversion.*^ 

§36.  For  benefit  of  the  bailee — Gratuitous  loans — The 
commodate. — Where  property  is  loaned  gratuitously  by 
the  owner  for  the  sole  benefit,  accommodation  and  use  of  the 
borrower,  and  the  specific  thing  loaned  is  to  be  returned,  a  gratu- 
itous bailment  relation  is  created,  which  may  be  called  a  com- 
modate, from  the  Roman  commodatum,  a  similar  relation.^"  Our 
English  loan  includes  also  the  loan  of  money  for  reward,  and  the 
loan  of  goods  to  be  returned  in  kind,  neither  of  which  is  a  bail- 
ment. The  distinction  between  the  commodate  and  other  bail- 
ments lies  in  the  fact  that  there  is  no  benefit  of  any  kind,  directly 
or  indirectly,  to  the  bailor,  but  the  benefit  is  solely  to  the  bailee,  for 
if  there  were  mutual  benefit,  however  slight,  the  bailment  would 
become  one  of  a  different  class,  in  which  the  liabilities  are  very 
different.  Since  the  general  rule  in  bailments  is  that  the  liability 
of  the  bailee  is  proportionate  to  the  benefit  he  receives,  it  follows 
that  the  bailee  in  commodate  is  held  to  a  very  high  degree  of  care 
for  the  thing  loaned,  and  this  feature  distinguishes  his  legal  lia- 
bility from  that  of  other  bailees. 

*"  Story  Bailments  (9th  ed.)J§  117,  Wend.  (N.  Y.)  25,  25  Am.  Dec.  596; 

118;  Roulston  v.  McClelland,  2  E.  D.  Roulston    v.    McClelland,    2    E.    D. 

Smith  (N.  Y.)  60;  BHven  v.  Hudson  Smith   (N.  Y.)  60;  Goodwin  v.  Ray, 

R.  Co.,  36  N.  Y.  403 ;  Burton  v.  Wil-  108  Tenn.  614,  69  S.  W.  730.  91  Am. 

kinson,  18  Vt.  186,  46  Am.  Dec.  145.  St.  761. 

"  Trefftz  V.  Canelli,  L.  R.  4  P.  C.  •"  Wear  v.  Gleason,  52  Ark.  364,  12 

277;  Carle  v.  Bearce,  2>Z  Maine  22,7;  S.  W.  756,  20  Am.  St.  186. 

State  V.  Fitzpatrick,  64  Mo.   185.  ^^  See  Schouler  Bailments  (3d  ed.), 

^  Hale  Bailments,  pp.  74,  75 ;  Wink-  §  66 ;  Street,  Found.  Leg.  Liab.,  voL 

ley  V.  Foye,  22  N.  H.  171,  66  Am.  Dec.  2,  ch.  28,  p.  281. 
715;    Beardslee    v.    Richardson,    11 


GRATUITOUS    BAILMENTS.   .  35 

§  37.  Creation  of  the  relation. — This  relation  can  only 
arise  by  contract,  for  only  by  the  owner's  consent  can  one  acquire 
the  right  to  use  another's  property  for  his  own  benefit. °^  There- 
fore the  parties  must  be  competent,  and  fraud  or  duress  w'ill 
vitiate  the  contract,  as  in  the  case  of  any  other  contract.'^  Nor 
can  an  executory  contract  for  a  loan  be  enforced,  since  the  con- 
sideration for  the  bailment  does  not  arise  until  the  delivery  of  the 
property  loaned. ^^  If  the  contract  is  not  for  a  legal  purpose  the 
law  will  not  recognize  it.^*  The  relationship  begins  with  the 
delivery  of  the  article  loaned  to  the  borrower,  and  there  is  no  lia- 
bility upon  either  party  before.^^ 

§  38.  Bailee's  rights  and  obligations, — The  bailee  of  this 
class,  has,  like  all  other  bailees,  a  possessory  right  which  he  can 
legally  defend  against  third  parties.^^  His  right  to  use  the  article 
loaned  depends  entirely  upon  the  conditions  of  his  contract,  and 
any  deviation  in  the  slightest  degree  therefrom  is  a  tort,  and 
renders  him  strictly  liable  for  any  resulting  injury,  even  though 
it  was  caused  by  the  act  of  God,  or  the  public  enemy,  or  irresisti- 
ble force,  and  though  this  rule  can  be  said  to  apply  to  every  bailee, 
it  is  construed  much  more  strictly  in  the  case  of  the  bailee  in  a 
commodate  relation. °^  So  the  bailee,  having  the  use  of  the  ar- 
ticle, must  pay  all  ordinary  expenses  connected  with  its  use,  as 

"Hagebush  v.  Ragland.  78  111.  40;  Barker  v.   Miller,  6  Johns.    (N.   Y.) 

State  V.  Bryant,  74  N.  Car.  124.  195;   cases  cited   Hale   Bailments,  p. 

''Hagebush  v.  Ragland,  78  111.  40;  90. 
Eaton  V.   Hill,  SO  N.  H.  235,  9  Am.        "Van     Zile    Bailments     (2d    ed.). 

Rep.     189;     Campbell    v.     Stakes,    2  §  105;  Coggs  v.  Bernard,  2  Ld.  Raym. 

Wend.  (N.  Y.)  137,  19  Am.  Dec.  561;  909;    Bringloe    v.    Morrice.    1    Mod. 

Vasse  V.    Smith,   6  Cranch    (U.   S.)  210;  Bryant  v.  Wardeli,  2  Exch.  479; 

226,  3  L.  ed.  207.  Stewart  v.  Davis,  31  Ark.  518,  25  Am. 

°^Elsee  V.   Gatward,   5  T.   R.   143;  Rep.  576;   Ross   v.    Southern   Cotton 

Shillibeer  v.   Glyn,  2  M.  &  W.   143;  Oil    Co.,    41    Fed.    152;    Wilcox    v. 

Thome  v.  Deas,  4  Johns.  (N.  Y.)  84;  Hogan,  5   Ind.  546;    Cullen  v.   Lord, 

Crosby  v.  German,  4  Wis.  373.  39    Iowa    302;    Green    v.    Hollings- 

"Storv  Bailments,  §  229;  Van  Zile  worth.    5    Dana    (Ky.)    173,    30    Am. 

Bailments  (2d  ed.),  §  103.  Dec.  680;  Wheelock  v.  Wheelwright,  5 

^''Schouler     Bailments      (3d     ed.),  Mass.  104;  Beller  v.  Schultz,  44  Mich. 

§  71.  529,  7  N.  W.  225,  38  Am.  Rep.  280; 

'"Chamberlain    v.    West.    37    Minn.  Scranton  v.  Baxter,  4  Sandf.  (X.  Y.) 

54,  3  N.  W.  114;  Paddock  v.  Wing,  5;  CoUins  v.  Bennett,  46  N.  Y.  490; 

16  How.   Pr.    (N.  Y.)    547;   Ilurd  v.  Fox  v.  Pruden,  3  Dalv  (N.  Y.)   187; 

West,  7  Cow.  N.  Y.)  752;  Hendricks  Hart  v.  Skinner,  16  Vt.  138,  42  Am. 

V.   Decker,   35   Barb.    (N.   Y.)    298;  Dec.  500. 


36  .  BAILMENTS. 

for  feed,  care  and  shoes  for  a  horse. ^^  But  he  is  not  liable  for 
extraordinary  expenses  not  incident  to  the  use  and  not  caused  by 
his  fault,  as,  for  instance,  if  a  horse  should  be  taken  so  sick  that  a 
veterinary  was  necessarily  employed,  the  bailor  would  be  liable 
for  expenses  so  incurred,  and  the  bailee  could  recover  from  the 
bailor  if  he  had  paid  them.^®  One  to  whom  photographs  are 
loaned  for  a  particular  purpose  has  no  right,  in  the  absence  of 
express  or  implied  authority,  to  use  them  for  any  other,^"  and 
where  a  photograph  was  loaned  to  a  painter  to  aid  him  in  paint- 
ing a  portrait,  and  he  painted  a  second  portrait  from  it,  it  was  a 
violation  of  the  contract,  and  a  breach  of  the  trust  reposed  in  the 
painter  under  the  contract  relation  existing  with  the  owner.®^  A 
vendor  of  chattels  who  undertakes  to  ship  them  to  a  consignee 
is  liable  for  their  value  in  case  they  are  lost  through  his  failure 
to  see  that  they  reach  the  carrier.*'^ 

§  39.  Bailor's  rights  and  duties. — The  bailor  must  gen- 
erally warn  the  bailee  of  any  known  defects  in  the  thing  lent,  but 
is  not  liable  for  injuries  caused  by  defects  of  which  he  did  not 
know.*'^  He  must  reimburse  the  bailee  for  extraordinary  expenses 
incurred  in  the  preservation  of  the  chattel,  not  caused  by  the 
bailee's  fault."*  And  it  seems  that  if  the  bailment  is  for  a  fixed 
term  he  inust  allow  the  bailee  to  use  the  thing  loaned  until  the  ex- 
piration of  that  term,  at  least  if  termination  of  the  loan  before  that 
time  would  injure  the  bailee,®^  though  some  authorities  regard 

^'  Bennett   v.    O'Brien,   37   111.   250 ;  679  and  note.    See  Coggs  v.  Bernard, 

Harrington   v.    Snyder,   3    Barb.    (N.  2  Ld.  Raym.  909,  1  Smith  Lead.  Cas. 

Y.)  380.  (9th  Am.  ed.)   354  and  notes;  Clark 

"Chase  v.  Corcoran,  106  Mass.  v.  Hutchins,  14  East.  475;  Dickey  v. 
286;  Starrett  v.  Barber,  20  Maine  Grant,  6  Cow.  (N.  Y.)  310;  Diebold 
457;  Dale  v.  Brinkerhoff,  7  Daly  (N.  Safe  &  Lock  Co.  v.  Holt,  4  Okla. 
Y)  45;  Harter  v.  Blanchard,  64  479,  46  Pac.  512;  IMcCandlish  v.  New- 
Barb.  (N.  Y.)  617;  Blake  v.  Buch-  man,  22  Pa.  St.  460. 
anan.  22  Vt.  548.  ^  Blakemore  v.  Bristol  &c.  R.  Co., 

'"  Tuck  V.    Priester,   19  Q.   B.   Div.  8  El.  &  Bl.  1035 ;  Coughlin  v.  Gillison 

629;  Corliss  v.  E.  W.  Walker  Co.,  57  (1899),    1   Q.   B.   145;   MacCarthy  v. 

Fed.  434,  64  Fed.  280,  31   L.   R.   A.  Young,  6  H.  &   N.   329;   Gagnon  v. 

283;  Klug  v.   Sheriffs,  129  Wis.  468,  Dana,  69  N.  H.  264,  39  Atl.  982,  41 

109  N.  W.  656,  9  Am.  &  Eng.  Ann.  L.  R.  A.  389,  76  Am.  St.  170. 

Cas.  1013,  and  note.  "  See  cases  cited  under  note  59. 

«Klug   V.    Sheriffs,    129   Wis.   468,  ^Hale     Bailments,     p.     97,     citing 

109  N.  W.  656,  9  Am.  &  Eng.  Ann.  Bringloe   v.    Morrice,    1    Mod.    210; 

Cas.  1013.  Root  v.  Chandler.  10  Wend.  (N.  Y.) 

*=  Sprinkle  V.  Brim,  144  N.  Car.  401,  110;  Hoyt  v.  Gelston,  13  Johns.   (N. 

57  S.  E.  148,   12  L.  R.  A.    (N.  S.)  Y.)    141,    affd.,    13    Johns.    (N.    Y.) 


GRATUITOUS    BAILMENTS.  37 

such  a  bailment  as  entirely  precarious,  and  terminable  at  any  time 
by  the  bailor  f®  and  in  any  event  in  the  absence  of  stipulation,  the 
bailor  may  terminate  the  bailment  after  a  reasonable  period  of 
time.®^  He  may  sue  third  parties  in  his  own  name  for  injuries, 
while  the  article  is  in  the  possession  of  the  bailee.''^ 

§  40.  The  care  demanded  of  the  bailee. — The  bailee  is 
held  to  the  strictest  care  of  the  property  and  is  answerable  for 
damages  resulting  from  the  slightest  neglect/"  and  is  held  with 
the  same  strictness  to  follow  the  directions  of  the  owner  and 
the  conditions  of  the  loan.'^°  It  has  sometimes  been  said  that  he 
is  bound  to  use  more  care  than  he  used  for  his  own  goods,  but 
this  is  not  a  fair  test,  the  real  test  being  whether  he  was  guilty 
of  any  negligence.^^  Since  he  is  liable  for  only  slight  negligence, 
it  would  seem  that  he  is  held  to  use  the  degree  of  care  which  men 
of  more  than  ordinary  prudence  use  in  the  care  of  their  own 
goods  in  similar  circumstances."  On  the  other  hand,  if  the 
lender  knows  from  the  borrower's  character,  habits  or  skill,  that 
he  is  not  capable  of  bestowing  the  care  of  a  more  than  ordinarily 
prudent  man,  he  has  loaned  the  article  with  this  in  mind,  and 
cannot  hold  the  borrower  to  greater  care  than  he  is  capable  of, 
as  where  a  horse  is  lent  to  an  inexperienced  boy,  the  lender  can- 
not expect  him  to  exercise  the  care  of  a  skilled  horseman. '^^  If 
the  borrower  has  not  departed  from  his  contract,  or  has  not  been 
negligent,  he  is  not  liable  for  acts  caused  by  the  act  of  God,  the 

561;    Schouler    Bailments     (3d    ed.),  §   102;  Acvzynski  v.   Bulkiewicz,   140 

§    87;    Story    Bailments     (9th    ed.),  IH.  App.  375. 

§§  258,  261.  ""See    cases    cited    under    note    57, 

*' See  Schouler  Bailments  (3d  ed.),  §   38. 

§    81;    Story    Bailments     (9th    ed.),  "Schouler     Bailments      (3d     ed.), 

§277.  §    75;    Story    Bailments     (9th    ed.), 

"^ Green  v.  HoUingsworth,  5  Dana  §§  245-251;   Hale  Bailments,  pp.  94- 

(Ky.)    173,  30  Am.  Dec.  680;   Clapp  95. 

V.  Nelson,  12  Tex.  370,  62  Am.  Dec.  "Story  Bailments  (9th  ed.),  §  238; 

530.  Schouler  Bailments    (3d  ed.),   §   72; 

**Claridge    v.    South    Staffordshire  Vaughan  v.   Menlove,  3  Bing.   N.  C. 

Tramway  Co.    (1892),   1   Q.   B.  422;  468;  Beller  v.  Schultz,  44  Mich.  529, 

Orser  v.  Storms,  9  Cow.  (N.  Y.)  687,  7  N.  W.  225,  38  Am.  Rep.  280. 

18   Am.    Dec.   543.      See   cases   cited  "Beale  v.  South  Devon  R.  Co.,  12 

above.  W.  R.  1115;  Wilson  v.  Brett,   11   M. 

'"Street,    Found.    Leg.    Liab.,    vol.  &   W.    113;    Knowles    v.    Atlantic    & 

2,  ch.  28,  p.  281;  Schouler  Bailments  St.  L.  R.  Co.,  38  Maine  55,  61   Am. 

(3d  ed.),  §  72;  Story  Bailments   (9th  Dec.  234;  Mooers  v.  Larry.  15  Gray 

ed.),    §    237;    Van    Zile    Bailments,  (Mass.)   451;  Eastman  v.  Patterson, 

38  Vt.  146. 


38  BAILMENTS. 

public  enemy,  irresistible  force,  or  inevitable  accident,  nor  for  the 
acts  of  a  robber,  thief  or  mere  stranger."*  He  must  at  all  times 
exercise  perfect  good  faith,  a  duty  devolving  upon  all  bailees. 
For  damage  caused  by  ordinary  wear  or  tear  he  is  not  liable." 

§  41.  Redelivery. — The  bailee  must  return  the  thing 
borrowed,  and  everything  accessorial,  as  the  young  of  an  animal, 
born  during  the  time  of  the  bailment,  and  the  income  of  stock 
loaned  to  allow  the  borrower  to  pledge  it  as  security.^^  He  must 
return  it  at  the  time  specified,  or  he  is  liable  in  an  action  for 
breach  of  contract,"  or,  if  no  time  was  fixed,  within  a  reasonable 
time.^*  The  contract  will  ordinarily  govern  as  to  the  place  of  de- 
livery; if  not,  the  proper  place  is  to  be  determined  from  the  cir- 
cumstances.'^ In  general,  delivery  must  be  made  to  the  lender, 
but  if  the  bailee  restores  it  to  the  true  owner,  or  the  true  owner 
takes  it  from  his  possession,  this  relieves  him  from  liability  to  the 
lender.*"  The  borrower  cannot  retain  the  article  borrowed  as  se- 
curity for  any  antecedent  debt  owing  to  him.  That  would  be  a 
departure  from  the  contract  obligations,  and,  indeed,  an  exercise 
of  bad  faith  on  the  part  of  the  bailee.*^ 

"Abraham   v.    Nunn,   42   Ala.    51;  187;   Clapp  v.   Nelson,   12  Tex.  370, 

Bennett  v.  O'Brien,  11  111.  250 ;  Wood  62  Am.  Dec.  530. 

V.   McClure,  7  Ind.   155;  Watkins  v.  "Lav's  Exr.  v.  Lawson's  Admr.,23 

Roberts,  28  Ind.  167;  Yale  v.  Oliver,  Ala.  ill;   Wilcox  v.   Hogan,   5   Ind. 

21   La.  Ann.  454;   Beller  v.   Schultz,  546;  Green  v.  HoUingsworth,  5  Dana 

44  Mich.  529,  7  N.  W.  225,  38  Am.  (Ky.)  173,  30  Am.  Dec.  680;  Ross  v. 

Rep.    280 ;     Scranton    v.    Baxter,    4  Clark,  27  Mo.  549. 

Sandf.  (N.  Y.)  5;  Fortune  v.  Harris,  "'Hale  Bailments,  §  23,  p.  99. 

6  Jones  (N.  Car.)  532.  ^'Hale    Bailments,    §    23,    p.    100; 

"Hyland  v.  Paul,  Z2>  Barb.  (N.  Y.)  Shelbury  v.  Scotsford,  Yel.  23;  Wat- 

241.     See  cases  cited  in  note  74.  kins  v.   Roberts,  28  Ind.   167;  Whit- 

'' Booth  v.  Terrell,  16  Ga.  20 ;  Allen  tier   v.    Smith,    11    Mass.    211;    The 

v.  Delano,  55  Maine  113,  92  Am.  Dec.  "Idaho,"  91>  U.  S.  575,  23  L.  ed.  978. 

573;    Orser   v.   Storms.   9   Cow.    (N.  "'Story  Bailments  (9th  ed.),  §  262; 

Y.)  687,  18  Am.  Dec.  543;  Hasbrouck  Fick  v.  Runnels,  48  Mich.  302,  12  N. 

v.    Vandervoort,   4   Sandf.    (N.    Y.)  W.  204;  Enos  v.  Cole,  53  Wis.  235, 

74.  10  N.  W.  WT- 

"Fox  V.  Pruden,  3  Daly   (N.  Y.), 


CHAPTER  III. 


PLEDGES. 


i  42.  What    is   a   pledge. 

43.  Pledge      distinguished      from 

chattel    mortgage    and    lien. 

44.  Essentials  of  the  relation. 

45.  What  debt  may  be  secured. 

46.  What  may  be   pledged. 

47.  Title     necessary     to     pledge 

goods. 

48.  Delivery  in  pledge. 

49.  Constructive   delivery. 

50.  Certain  kinds  of  constructive 

delivery     not     good    as     to 
creditors. 

51.  Delivery    of     negotiable     in- 

struments  in  pledge. 

52.  Pledge    of   corporate   stock. 

53.  Delivery    of    bills    of    lading, 

and    other    quasi-negotiable 
papers. 

54.  Pledgee's  right  to  possession 

of  pledge. 

55.  Pledgee's    right    to    use — Ex- 

penses  and   profits. 

56.  Care   demanded   of  pledgee — 

Collection      of      negotiable 
paper. 

57.  Pledgee's      right     to     assign 

pledge. 

58.  Conversion    by    pledgee. 

59.  The     pledgor's     warranty     of 

title  to  the  pledge. 


60.  Pledgor's  right  to  assign  sub- 

ject   to   pledge. 

61.  Pledgor's    right    to    sue   third 

parties. 

62.  The    pledgor's    right    to    re- 

deem. 

63.  Termination    of    the    relation 

by    the   pledgor. 

64.  Termination     by     consent  of 

parties  or  operation  of  law. 

65.  Redelivery. 

66.  Pledgee's      remedies      upon 

pledgor's   default. 

67.  Suit  on  the   debt. 

68.  Common-law      sale      of      the 

pledge. 

69.  Sale  in   equity. 

70.  Sale  under  statute. 

71.  Sale  under  the  provisions  of 

a  special  contract. 

72.  Further    of     pledgee's    rights 

in  case  of  default — Where 
pledge  is  chose  in  action 
or   corporate   stock. 

73.  Pledgor's    rights    in    case    of 

default,  or  in  case  of 
pledgee's    wrong. 

74.  Rights       of       purchaser       at 

pledgee's  sale. 


§42.  What  is  a  pledge. — With  the  subject  of  pledges 
we  pass  to  bailments  of  mutual  benefit.  A  pledge  is  a  bailment  of 
a  chattel  to  secure  the  payment  of  a  debt,  or  the  performance  of 
an  obligation,  with  power  of  sale  in  case  of  a  default.^  This  re- 
lationship probably  had  its  origin  in  the  business  of  the  pawn- 
broker, who  made  loans  upon  jewelry  and  wearing  apparel  as 
security,  but  in  the  modern  business  world  the  relationship  has 


*  See  Jones  Pledges,  1 ;  Hale  Bail- 
ments, §  25;  Goddard  Bailments,  § 
70;  First  Nat.  Bank  v.  Harkness,  42 


W.  Va.  156,  24  S.  E.  548.  32  L.  R.  A. 
408. 


39 


40  BAILMENTS. 

expanded,  and  now  the  pledgee  is  perhaps  more  often  a  banking 
corporation  which  makes  loans  on  collateral  security,  a  loan  and 
security  corporation,  or  a  collateral  security  bank,  carrying  on 
transactions  amounting  to  millions  of  dollars,  so  that  the  law  of 
pledges  is  one  of  the  most  important  branches  of  the  modern 
law  of  contracts,  and,  excepting  carriers,  the  subject  is  the  most 
extensive  in  its  application  of  the  bailment  subjects.  The  rela- 
tion is  essentially  a  contract  relation;  therefore  the  ordinary  rules 
of  contracts  as  to  the  competency  of  parties,  the  consideration, 
mutual  assent,  and  construction  of  contracts  apply,  while  the 
principles  of  agency  as  well  are  applicable. 

§  43.  Pledge  distinguished  from  chattel  mortgage  and 
lien. — The  holder  of  a  lien  on  personal  goods  has  the  right  to 
retain  the  goods  until  the  debt  is  paid,  but  has  no  right  to  sell 
them,  and  as  a  rule  cannot  transfer  his  lien,  it  being  personal.^ 
The  holder  of  goods  in  pledge  has  not  only  the  right  to  retain 
them  until  the  obligation  is  met,  but  may  sell  them  in  case  of  de- 
fault, and  ordinarily  may  transfer  his  right.^  The  holder  of  a 
chattel  mortgage  holds  the  legal  title  to  the  goods,  subject  to  de- 
feat by  the  payment  of  the  debt  or  obligation,  and  thus  has  a 
greater  right  than  the  pledgee,  while  the  lienholder  has  a  lesser 
right.  And  as  the  mortgagee  holds  by  transfer  of  title,  it  is  not 
essential  to  the  maintenance  of  his  rights  that  he  should  have 
possession  of  the  goods,  while  the  pledgee's  rights  depend  upon 
possession.*  Apparently  absolute  transfers  of  property  may  be 
shown  to  have  been  intended  by  the  parties  as  merely  pledges  for 
security,  and  in  construing  such  contracts  the  courts  are  governed 
largely  by  the  intention  of  the  parties,  so  that  "whether  one  is 
a  purchaser  or  pledgee  depends  upon  the  true  intent  of  the  trans- 
action."° 

*  Hale  Bailments,  p.   103 ;   Schouler  *  See  citations  in  note  3,  supra.  For 

Bailments,  Including  Carriers  (1905),  distinction  between  chattel  mortgage 

§  139 ;  Goddard  Bailments,  §  12 ;  Mc-  and   pledge,    see   American   Pig   Iron 

Combie  v.  Davies,  7  East  5;   Potho-  &c.   Co.  v.  German,   126  Ala.  194,  28 

nier  v.  Dawson,  Holt  N.  P.  383.    See  So.  603,  85  Am.  St.  21  note,  4  L.  R. 

note  94  Am.  St.  240.  A.  305.    See  Conrad  v.  Fisher,  Zl  Mo. 

^See  infra,  §§57,  68-72;  1  Powell  App.  352,  8  L.  R.  A.  147. 

Mortgages     3 ;      Hale      Bailments,  ^  Schouler  Bailments  Including  Car- 

p.    103;    Schouler     Bailments     (3d  riers      (1905),     §      140.       See     also, 

ed.),    §§    167,    168.  Wright  v.  Ross,  36  Cal.  414;   Com- 


PLEDGES. 


41 


§  44.  Essentials  of  the  relation. — It  is  essential,  in  addi- 
tion to  the  elements  common  to  all  bailments,  that  there  should 
be  a  mutual  agreement  of  the  parties — for  a  pledge  cannot  be  cre- 
ated by  operation  of  law,  though  it  may  be  implied,  from  the 
conduct  of  the  parties® — and  that  there  be  a  debt  or  obligation  to 
be  secured. 

§45.  What  debt  may  be  secured. — The  debt  secured 
may  be  that  of  the  pledgor,  or  of  some  other  person,  if  there  is 
assent  by  all  parties.^  Either  a  future^  or  a  past^  obligation  may 
be  secured;  or  many  debts  and  not  one  only;^"  and  the  security 
may  be  absolute,  or  conditional,  for  a  limited  or  an  indefinite 
time.^^  The  parties  may  have  an  agreement  by  which  the  subject 
of  the  pledge  may  become  security  for  debts  which  may  arise  be- 
tween them  from  time  to  time.^^    But  when  a  pledge  has  been 


stock  V.  Smith,  23  Maine  202;  Wil- 
kie  V.  Day,  141  Mass.  68.  6  N.  E.  542; 
Partee  v.  Bedford.  51  Miss.  84;  Har-' 
ris  &  Co.  V.  Lombard,  60  IMiss.  29; 
Wood  V.  Matthews,  11  Mo.  477 ;  Wil- 
son V.  Little,  2  N.  Y.  443,  51  Am.  Dec. 
307n;  McCoy  v.  Lassiter,  95  N.  Car. 
88;  British  Columbia  Bank  v.  ]\Iar- 
shall,  8  Sawyer  (U.  S.)  29.  If  there  is 
doubt  as  to  whether  a  transaction  is 
a  pledge  or  chattel  mortgage,  the 
law  favors  the  conclusion  that  it  is  a 
pledge.  Palmer  v.  Mutual  Life  Ins. 
Co.,  114  Minn.  1,  130  N.  W.  250, 
Ann.  Cas.  1912B.  957,  and  see  note 
for  distinction  between  pledge  and 
chattel   mortgage. 

*  Hale  Bailments,  §  26 ;  Schouler 
Bailments  (3d  ed.).  §  179;  Wilkinson 
V.  Misner,  158  Mo.  App.  551,  138  S. 
W.  931;  Means  v.  Bank  of  Randall, 
"46  U.  S.  620,  13  Sup.  Ct.  186,  36  L. 
ed.  1107. 

Price  V.  Dime  Savings  Bank,  124 
111.  317,  15  N.  E.  754.  7  Am.  St.  367; 
Britton  v.  Harvev.  47  La.  Ann.  259, 
16  So.  747;  Jewett  v.  Warren,  12 
Mass.  300,  7  Am.  Dec.  74. 

®  Merchants'  Nat.  Bank  v.  Demere, 
92  Ga.  735.  19  S.  E.  38;  Clymer  v. 
Paterson,  52  N.  J.  Eq.  188,  27  Atl. 
645;  Merchants  Nat.  Bank  v.  Hall, 
83  N.  Y.  338,  38  Am.  Rep.  434; 
Stearns  v.  Marsh,  4  Denio  (N.  Y.) 
227,   47  Am.    Dec.   248;    Leonard   v. 


Kebler's  Admr.,  SO  Ohio  St.  444,  34 
N.  E.  659. 

^"^*  Jewett  V.  Warren,  12  Mass.  300, 
7  Am.  Dec.  74;  Badlam  v.  Tucker,  1 
Pick.  (Alass.)  389,  11  Am.  Dec.  202; 
Stearns  v.  Marsh,  4  Denio  (N.  Y.) 
227,  47  Am.  Dec.  248;  Conard  v.  At- 
lantic Ins.  Co.,  1  Pet.  (U.  S.)  386,  7 
L.  ed.  189;  D"\\"olf  v.  Harris.  4 
^las.  (U.  S.)  515,  Fed.  Cas.  No. 
4221,  affd.  4  Pet.  (U.  S.)  147,  7  L. 
ed.  811.  An  existing  overdue  note  is 
sufficient  consideration  for  the  pledge 
of  stock  as  security  for  its  payment. 
State  Banking  &  Trust  Co.  v.  Tav- 
lor,  25  S.  Dak.  577,  127  N.  \V.  590. 
29  L.  R.  A.   (N.  S.T^'S. 

^°  Mechanics'  &:c.  Bank  v.  Living- 
ston, 6  Misc.  (N.  Y.)  81,  55 
N.  Y.  St.  394.  26  N.  Y.  S. 
25;  Jones  v.  Merchants'  Nat.  Bank, 
72  Hun  (N.  Y.)  344,  25  N.  Y.  S. 
660,  55  N.  Y.  St.  365. 

"•Stevens  v.  Bell,  6  ]\Iass.  339; 
Hendricks  v.  Robinson,  2  Johns.  Ch. 
CN.  Y.)  283;  Shirras  v.  Craig,  7 
Cranch  (U.  S.)  34,  3  L.  ed.  260. 

"Norton  v.  Plumb,  14  Conn.  512; 
Hallowell  v.  Blackstone  Nat.  Bank, 
154  Mass.  359,  28  N.  E.  281.  13  L.  R. 
A.  315 ;  Fall  River  Bank  v.  Slade.  153 
Alass.  415,  26  N.  E.  843,  12  L.  R.  A. 
131n;  Merchants  Nat.  Bank  v.  Hall, 
83  N.  Y.  338,  38  Am.  Rep.  434. 


42 


BAILMENTS. 


made  to  secure  one  debt,  the  pledgee  is  not  authorized  to  detain 
the  property  to  secure  a  former  debt/^  or  a  subsequent  debt/*  un- 
less the  parties  so  intended.  Even  if  the  debt  is  void  because  of 
illegality  of  consideration,  the  pledge  may  be  good,  for  though 
the  pledgee  cannot  recover  on  the  debt,  he  can  retain  the  pledge 
until  it  is  redeemed,  and  the  pledgor  cannot  recover  possession 
without  redeeming,  for  to  do  so  he  must  set  up  his  own  wrong,^^ 
and  likewise  the  pledgee  cannot  set  up  the  illegal  contract  to  pre- 
vent redemption." 

§  46.  What  may  be  pledged. — Corporeal  personal  prop- 
erty may  be  pledged.^^  Almost  any  form  of  incorporeal  property 
and  choses  in  action  may  also  be  pledged,  including  bills  and 
notes,^*  coupon  bonds  and  government  securities,^^  municipal 
claim  vouchers,^"  shares  of  stock,^^  chattel  mortgages  of  every 
kind,"  title-deeds,^^  a  savings-bank  deposit,-*  judgments,^^  bonds 
secured  with  a  mortgage  on  personal  property  and  corporate 
franchises,^®  the  gross  receipts  of  a  railway  corporation,^'  even 


"  Mahoney  v.  Caperton,  .  15  Cal. 
313;  Russell  v.  Hadduck,  8  111.  233, 
44  Am.  Dec.  693;  Jarvis  v.  Rogers, 
15  Mass.  389;  Robinson  v.  Frost,  14 
Barb.  (N.  Y.)  536;  Philler  v.  Jewett, 
166  Pa.  St.  456,  31  Atl.  204;  Bank  of 
Metropolis  v.  New  England  Bank,  1 
How.  (U.  S.)  234,  11  L.  ed.  115. 

"Midland  Co.  v.  Huchberger,  46 
111.  App.  518;  Baldwin  v.  Bradley,  69 
111.  Z2\  Gilliat  v.  Lynch,  2  Leigh 
(Va.)    493. 

"Tavlor  v.  Chester,  L.  R.  4  Q.  B. 
309;  King  v.  Green,  6  Allen  (Mass.) 
139.  It  is  held  that  a  pledge  to  se- 
cure a  gambling  debt  is  void,  in 
Menard  v.  Wacker,  32  Nev.  169,  105 
Pac.  287,  Ann.  Cas.  1912C.  710. 

"Jones  Pledges,  §  354;  King  v. 
Green,  6  Allen   (Mass.)   139. 

"  Schouler  Bailments  (3d  ed.),  § 
172.  The  rails  and  rolling  stock  of  a 
railway  laid  for  a ,  temporary  pur- 
pose on  another's  ground,  being  per- 
sonal property,  may  be  pledged. 
Woodward  v.  American  Exposition 
R.  Co.,  39  La.  Ann.  566.  2  So.  413. 

"Smithurst  v.  Edmunds,  14  N.  J. 
Eq.  408;  Stearns  v.  Marsh.  4  Denio 
(N.  Y  )  227,  47  Am.  Dec.  248;  Hou- 
ser  V.  Kemp,  3  Pa.  St.  208. 


"Loomis  V.  Stave,  72  111.  623;  Mor- 
ris Canal  Co.  v.  Lewis,  12  N.  J.  Eq. 
323;  Strong  v.  Nat.  Bank  Assn.,  45 
N.  Y.  718;  Texas  Banking  Co.  v. 
Turnley,  61   Tex.  365. 

'"Talty  V.  Freedman's  Savings 
Trust  Co.,  93  U.  S.  321,  23  L.  ed.  886. 

^Halliday  v.  Holgate,  L.  R.  3  Ex. 
299;  Worthington  v.  Tormey,  34  Md. 
182;  Pinkerton  v.  Manchester  &  L. 
R.  R.,  42  N.  H.  424;  Conyngham's 
Appeal,  57  Pa.  St.  474;  Stone  v. 
Brown,  54  Tex.  330 ;  Heath  v.  Silver- 
thorn  Lead  Mining  &  Smelting  Co., 
39  Wis.  146. 

^  Jerome  v.  McCarter,  94  U.  S.  734, 
24  L.  ed.  136 ;  Fraker  v.  Reeve,  36 
Wis.  85. 

^  In  re  Kerr,  L.  R.  8  Eq.  331 ;  Eng- 
lish V.  McElroy,  62  Ga.  413. 

^Boynton  v.  Payrow,  67  Maine 
587 

^'Hanna  v.  Holton,  78  Pa.  St.  334, 
21  Am.  Rep.  20. 

'^  White  Mountains  R.  v.  Bay  State 
Iron  Co.,  50  N.  H.  57;  Potter  v. 
Thompson,  10  R.  I.  1. 

"West  Maryland  R.  Co.  v.  Blue 
Ridge  Hotel  Co.,  102  Md.  307,  62  Atl. 
351,  111  Am.  St.  362. 


PLEDGES.  43 

a  lease,  regarded  as  a  chattel  real,-^  or  a  mortgage  of  real  estate, 
which  before  foreclosure  is  personal  property,""  a  life  insurance 
policy,^**  a  policy  of  fire  or  marine  insurance.^^  So  an  interest 
in  a  limited  partnership  may  be  pledged,^^  or  by  written  assign- 
ment a  book  account^^  or  some  claim  or  demand,^*  bills  of  lad- 
ing,"^ and  warehouse  receipts.^®  What  is  not  in  existence  cannot 
be  the  subject  of  a  pledge,  whether  it  has  ceased  to  exist,  or  has 
not  come  into  being,^^  and  yet  there  may  be  a  contract  to  pledge 
the  product  in  future  of  something  to  which  one  holds  a  present 
right,  like  the  prospective  earnings  of  a  contract,  a  crop  severed 
from  land,  milk  from  cows,  wool  from  sheep,  or  goods  to  be 
manufactured,  and  when  the  property  comes  into  existence,  and 
the  pledgee  takes  possession,  the  pledge  is  consummated.^^  Prop- 
erty exempt  from  execution  may  be  pledged.^''  By  statute,  the 
pledge  of  the  pay  of  soldiers*"  and  United  States  pensions*^  is 
forbidden. 

§  47.  Title  necessary  to  pledge  goods. — The  pledgor 
need  not  be  the  absolute  owner  of  the  goods  pledged.*"  The 
holder  of  a  limited  interest,  as  the  owner  of  a  life  interest,*^  or 
a  pledgee**  may  pledge  what  interest  he  has,  and  in  case  of  de- 

**  Dewey  v.  Bowman,  8  Cal.  145.  **  Cleveland    v.    Shoeman,  40  Ohio 

'» Campbell  v.  Parker,  9  Bosw.  (N.  St.  176. 

Y.)  Z21\  Jerome  v.  McCarter,  94  U.  "  Schouler  Bailments   (3d  ed.),  §§ 

S.  734,  24  L.  ed.  136;  Wells  v.  Wells,  174,  175. 

IZ  Vt.  1.  ^'Schouler   Bailments    (3d   ed.),   % 

^''West  V.    Carolina  Life  Ins.   Co.,  175;  Goddard  Bailments,  §  74. 

31   Ark.  476;    Soule  v.   Union  Bank,  ''Jones  v.  Scott,  10  Kans.  Z2>\  Frost 

45  Barb.   (N.  Y.)   Ill;  Hakes  v.  My-  v.  Shaw,  3  Ohio  St.  270. 

rick,  69  Iowa  189,  28  N.  W.  575.  ■"•  U.  S.  Comp.  Stat.,  1901,  §  1291. 

^Latham    v.    Chartered    Bank    of  *^U.  S.  Comp.  Stat,  1901,  §  4745. 

India,  L.   R.   17  Eq.  205 ;   Merrifield  « See  note,  3  Am.  St.  204.    A  part- 

V.  Baker,  9  Allen   (Mass.)  29.  ner  may  not  pledge  partnership  prop- 

*"  Collin's  Appeal,   107  Pa.   St.  590,  erty   for   his    individual    debts.      Oli- 

52  Am.  Rep.  479.  phant  v.   Markham,  79  Tex.   543,   15 

^  Works  V.  Merritt,  105  Cal.  467,  38  S.  W.  569,  23  Am.  St.  363.     And  a 

Pac.  1109.  joint  owner  in  possession,  though  he 


**  Taylor  v.  Turner,  87  111.  296 
Hathaway  v.  Haynes,  124  Mass.  311 
Commonwealth  v.  Suffolk  Trust  Co. 


may  pledge  his  own  interest,  may  not 
pledge  that  of  his  co-owner,  without 
the  latter's  consent.    Frans  v.  Young, 


161  Mass.  550,  11  N.  E.  757;  Marine  24  Iowa  375. 

Bank  v.   Fiske,  71    N.   Y.   353.  "' Hoare  v.   Parker,  2  T.   R.  Z16. 

^^Lickbarrow   v.    Mason,    1    H.    Bl.  ■"  McCombie  v.   Davies,   7   East  5; 

357;    Douglas    v.    People's    Bank,    86  Jarvis  v.  Rogers,  15  Mass.  389;  Lewis 

Ky.  176,  5  S.  W.  420,  9  Am.  St.  276;  v.  Mott,  36  N.  Y.  395;  Nat.  Bank  of 

Neill  V.   Rogers  Bros.'   Produce  Co.,  Pulaski  v.  Winston,  5  Baxt.  (Tenn.) 

41  W.  Va.  Z1,  23  S.  E.  702.  685. 


44  BAILMENTS. 

fault,  the  pledgee  may  sell  such  interest,  though  he  cannot  sell 
the  absolute  property,  and  destroy  the  rights  of  the  true  owner. '*^ 
At  common  law,  a  lienholder  cannot  make  a  valid  pledge  of  the 
property  on  which  he  holds  a  lien,  for  such  is  a  personal  right, 
and  cannot  be  assigned.*^  So  a  factor,  though  the  holder  of  a 
lien  for  advances,  has  not  the  right  at  common  law  to  pledge  his 
principal's  goods,*^  yet  by  statute  in  some  states  both  the  factor 
and  the  ordinary  lienholder  have  been  given  the  right  to  pledge 
goods.*^  So  it  has  been  held  that  the  owner  of  goods  who 
clothes  another  with  the  indicia  of  ownership  cannot  take  them 
from  a  bona  fide  pledgee  without  notice,*®  as  where  the  vendee 
of  a  conditional  sale  has  pledged  goods.^"  If  goods  obtained 
from  the  owner  by  fraud  are  pledged,  the  pledgee  can  enforce 
his  rights  as  against  the  owner,^^  but  if  stolen  goods  are  pledged, 
the  pledgee  has  no  rights  against  the  owner.^'  In  the  first  case, 
though  the  owner's  consent  was  obtained  by  fraud,  yet  he  con- 
sented to  the  passing  of  the  goods  from  his  possession,  while 
in  the  second  he  has  in  no  manner  consented.  The  pledge  of  a 
negotiable  instrument  not  overdue  gives  to  the  bona  fide  pledgee 

**  Jones   Pledges,   §  60;   Robertson  *'Babcock  v.  Lawson,  4  Q.  B.  Div. 

V.  Wilcox,  36  Conn.  426.  394;  Morsch  v.  Lessig,  45  Colo.  168, 

*'  McCombie  v.  Davies,  7  East  5.  100  Pac.  431 ;  Branson  v.  Heckler,  22 

*^Hale  Bailments,  p.  114,  and  cases  Kans.  610;  Agnew  v.  Johnson,  22  Pa. 

cited;  Bott  v.  McCoy,  20  Ala.  578,  56  St.  471,  62  Am.  Dec.  303;  Reynolds 

Am.  Dec.  223;  Gray  v.  Agnew,  95  111.  v.  Witte,  13  S.  Car.  5.  36  Am.  Rep. 

315;     Hoffman    v.    Noble,    6    Mete.  678;  Calais  Steamboat  Co.  v.  Scudder, 

(Mass.)   68,  39  Am.  Dec.  711;  Ken-  2  Black  (U.  S.)  2,12,  17  L.  ed.  282. 

nedy  v.    Strong,    14  Johns.    (N.   Y.)  «* Michigan    C.    R.    Co.    v.    Phillips, 

128;  McCreary  v.  Gaines,  55  Tex.  485,  6)  111.  190;  Western  Union  R.  Co.  v. 

40  Am.  Rep.  818;  Warner  v.  Martin,  Wagner,  65  111.  197. 

11  How.   (U.  S.)  209,  13  L.  ed.  667;  ^'Duell  v.  Cudlipp.  1  Hilt.  (N.  Y.) 

note  45  Am.  St.  204.  166;    Hoffman   v.    Carow,  22   Wend. 

*' Ordinary  Lienholders,  Civ.   Code  (N.  Y.)  285. 

Cal.   (1906),  §  2990;  Civ.  Code  Dak.  ^'^  White  v.   Garden,   10  C.  B.  919; 

(1883),  §  1761;  Louisiana  Laws  1874,  Parker  v.  Patrick,  5  T.  R.  175;  Wood 

No.   66;    Maryland    Pub.   Gen.    Laws  v.  Yeatman,   15  B.  jNIon.    (Ky.)   270; 

(1904),  pp.  204-205,   §§   1-5;   Massa-  Caldwell  v.  Bartlett,  3  Duer  (N.  Y.) 

chusetts    Rev.    Stat.    (1902),   ch.   68;  341;  Mowrey  v.  Walsh,  8  Cow.   (N. 

Factors,    New    York,    3    Rev.    Stat.,  Y.)    238;   Farmers'   Bank  v.   Diebold 

(1901),  p.  4020,  §  72;  Ohio  Rev.  Stat.  Safe  &  Lock  Co.,  66  Ohio  St.  367,  64 

(1905),     §§     5142-48;     Pennsylvania,  N.  E.  518,  58  L.  R.  A.  620,  90  Am.  St. 

Brightley's   Purdon's  Dig.    (1873),  p.  586;    Arendale  v.    Morgan,   5    Sneed 

664;  Rhode  Island  Gen.  Laws  (1909),  (Tenn.)    703.     See   Menard  v.   Wac- 

p.  612,  ch.  187;  Wisconsin  Rev.  Stat.,  ker,  32  Nev.  169,  105  Pac.  287,  Ann. 

(1898),  §§  3345-3347.     See  Weiner  v.  Cas.    1912C.    710,     as     to    pledge    by 

Harris   (1910),  1  K.  B.  285,   18  Am.  clerk  of  an   employer's  money  with- 

&  Eng.  Ann.  Cas.  87.  out  employer's  knowledge, 


PLEDGES.  45 

without  notice  full  rights,  even  if  such  instrument  was  stolen,^' 
and  a  pledge  by  the  owner's  agent  in  possession  will  protect  a 
bona  fide  pledgee,  even  if  the  agent's  actual  authority  was  insuf- 
ficient.°*  An  administrator  or  executor  may  make  a  valid  pledge 
of  property  belonging  to  the  estate,  within  the  range  of  his  au- 
thority/^   A  receiver  may  pledge  property  of  the  corporation. ^"^ 

§  48.  Delivery  in  pledge. — The  pledge  or  bailment  rela- 
tion does  not  commence  until  there  is  an  actual  transfer  of  pos- 
session. Prior  to  such  transfer  there  may  exist  an  executory 
contract  to  pledge,  for  breach  of  which,  if  founded  upon  suffi- 
cient consideration,  the  courts  will  award  damages  to  either  party 
for  the  other's  failure  to  perform,®^  or  in  some  cases  equity  may 
decree  specific  performance.  The  element  essential  to  create  the 
pledgee's  right  in  the  goods  pledged  is  transfer  of  possession,  and, 
in  general,  a  pledge  does  not  exist  unless  the  pledgee  has  pos- 
session and  actual  control  of  the  property.^^  Delivery  to  the 
pledgee,  and  his  acceptance  and  continued  possession  are  the  only 
notice  to  the  world  in  general  of  the  pledgee's  rights,  and  these 
take  the  place  of  the  recording  of  a  mortgage,  or  the  filing  of 

"'  Sheffield  v.  London  Bank,  13  App.  ^  Scliouler      Bailments      Including 

Cas.   333;   Bealle   v.    Southern   Bank,  Carriers     (1905),     §     156;     Schouler 

57  Ga.  274;  Fisher  V.  Fisher,  98  Mass.  Bailments     (3d     ed.),     §     188;     Van 

303 ;  Farwell  V.  Importers' &  Traders'  Zile    Bailments     (2d    ed.),    §    237a; 

Nat.  Bank,  90  N.  Y.  483.  Dunn  v.  Train,  125  Fed.  221,  60  C.  C. 

"Goldstein   v.    Hort,   30    Cal.    372;  A.    113;    American    Can   Co.   v.    Erie 

Jarvis  v.  Rogers,   13  IMass.   105.    See  Preserving   Co.,   183   Fed.  96,    105   C. 

note  14  L.  R.  A.  234.  C.  A.  388 ;  Corbett  v.  Underwood,  83 

^Russell    V.    Plaice,    18    Beav.    21;  111.   324,  25  Am.   Rep.   392;   Franklin 

Pickens   v.    Yarborough's    Admr.,   26  Nat.  Bank  v.  Whitehead,  149  Ind.  560, 

Ala.  417,  62  Am.  Dec.  728 ;  Carter  v.  49  N.  E.  592,  39  L.  R.  A.  725.  63  Am. 

Manufacturers'  Nat.  Bank.  71  Maine  St.  302;    In   re  Lanaux's   Succession, 

448,  36  Am.   Rep.   338;   Hutchins  v.  46  La.  Ann.  1036,  15  So.  708,  25  L.  R. 

State   Bank,    12   Mete.    (Mass.)    421;  A.  577;  Moors  v.  Reading.  167  Mass. 

Tuttle  V.  First  Nat.  Bank  of  Green-  322,  45  N.   E.   760,  57  Am.   St.  460; 

field,  187  Mass.  533,  73  N.  E.  560,  105  Harding  v.   Eldridge,    186   Mass.   39, 

Am.  St.  420;  Leitch  v.  Wells,  48  N.  71    N.    E.    115;    Chitwood   v.   Lanvon 

Y.  585;  In  re  Woods'  Appeal,  92  Pa.  Zinc  Co.,  93   Mo.  App.  225;   Buffalo 

St.  379,  37  Am.  Rep.  694.     See  Solo-  German  Ins.  Co.  v.  Third  Nat.  Bank, 

mon  V.  Altenborough    (1912),   1   Ch.  162  N.  Y.  163.  56  N.  E.  521,  48  L.  R. 

451.    Ann.  Cas.  1912C.  975  and  note.  A.    107;    Virginia-Carolina    Chemical 

'^  State   Bank  of  Va.   v.   Domestic  Co.  v.  McNair,  139  N.  Car.  326,  51  S. 

&c.  Co.,  99  Va.  411,  39  S.  E.  141,  86  E.  949;  Nashville  Trust  Co.  v.  First 

Am.  St.  891.  Nat.  Bank,  123  Tenn.  617,  134  S.  W. 

"Schouler      Bailments       Including  311;    Geilfuss    v.    Corrigan,   95    Wis. 

Carriers     (1905),    §     156;     Schouler  651,  70  N.  W.  306,  37  L.  R.  A.  166,  60 

Bailments  (3d  ed.),  §  188.  Am.  St.  143. 


46  BAILMENTS. 

a  lien.^*  Delivery  may  be  made  by  an  agent  of  the  pledgor,^**  or 
to  an  agent  of  the  pledgee,®^  and  it  has  been  held  that  a  clerk 
of  the  pledgor  may  hold  goods  as  the  agent  of  the  pledgee,  his 
special  possession  for  the  pledgee  being  distinct  from  his  duties 
as  clerk, ^^  And  even  the  pledgor  himself,  as  between  the  parties, 
may  hold  as  the  agent  of  the  pledgee.^^  It  is  said  by  Mr. 
Schouler,  in  a  recent  text-book,  "Two  leading  conclusions  may 
be  drawn  from  the  precedents  which  form  the  modern  mosaic  of 
pledge  delivery,  i.  That  in  the  growing  complexity  of  commer- 
cial and  mercantile  transactions,  with  so  many  new  classes  of  in- 
corporeal rights  coming  into  the  list  of  things  personal,  the  dis- 
position increases  to  apply  to  all  chattel  transfers  the  test  of 
mutual  intent  on  equitable  considerations;  so  that  the  English 
and  American  courts,  while  abating  little  of  the  common-law 
theory  that  full  change  of  possession  must  attend  every  pledge 
transaction,  have  come  to  swerve  very  far  from  it  in  practice. 
2.  That,  with  the  present  laxity  of  construction,  pledge  delivery 
seems  to  comport  itself  differently  under  these  three  leading 
aspects:  (a)  As  between  the  pledge  parties  themselves,  (b)  as 
between  the  pledge  parties  and  the  pledgor's  general  creditors, 
and  (c)  as  between  pledge  parties  and  those  like  a  pledgor's  at- 
taching creditors  or  purchasers,  or  new  parties  lending  on  se- 
curity of  the  thing,  who  acquire  intervening  rights  in  rem  with- 
out notice.  Moreover,  as  we  have  seen,  (d)  the  element  of  no- 
tice to  stakeholder,  custodian,  or  debtor  is  in  many  transactions 
a  vital  one ;  and  the  pledgee's  rights  as  concerns  such  a  party  re- 
quire consideration.'"**  With  these  principles  in  mind,  we  shall 
consider  some  of  the  various  kinds  of  delivery  which  have  been 
held  good  by  the  courts  in  relation  to  various  ones  of  these  three 
classes. 

'°See  Van  Zile  Bailments  (2d  ed),  H.  430;  City  Bank  v.  Perkins,  29  N. 

§  237a,    and    cases    cited    in   note   58  Y.  554,  86  Am.  Dec.  332;  Johnson  v. 

supra.    Actual  and  continuous  posses-  Smith,  11  Humph.   (Tenn.)  396. 

sion    of    the   pledged    article    by   the  *- Sumner     v.     Hamlet,     12     Pick, 

pledgee   is   essential   to   preserve   his  (Mass.)    76;    Combs   v.    Tuchelt,   24 

lien.    Gamson  v.  Pritchard,  210  Mass.  Minn.  423. 

296,  96  N.  E.  715.  "'  Cooper  v.  Ray,  47  III.   53 ;   Par- 

'» Cartwright  v.  Wilmerding,  24  N.  shall  v.  Eggert,  54  N.   Y.   IB;   In  re 

Y.  521.     See  note,  14  L.  R.  A.  234.  Rawson,  2  Lowell  (U.  S.)  519. 

^  Weens  v.  Delta  Moss  Co.,  33  La.  **  Schou-ler      Bailments      Including 

Ann.    973;    Boynton    v.    Payrow.    67  Carriers  (1905),  §  166. 
Maine  587;  Brown  v.  Warren,  43  N. 


PLEDGES. 


47 


§49.  Constructive  delivery.— The  general  rule  is  that 
there  must  be  actual  delivery  of  corporeal  chattels,  and  yet  con- 
structive delivery  of  these  is  good  between  the  parties."^  Where 
property  is  in  the  possession  of  a  third  party,  actual  delivery  to 
the  pledgee  is  not  necessary,  but  an  order  to  the  keeper,  or  notice 
to  the  keeper  of  a  written  pledge  contract,  may  constitute  con- 
structive delivery,  and  thus  the  keeper  becomes  the  agent  of  the 
pledgee  in  caring  for  the  goods.^*  The  pledgee  may  be  already 
in  possession  of  the  goods,  for  some  other  purpose  or  other 
pledge,  and  in  such  case,  a  pledge  contract  between  the  parties 
operates  as  a  constructive  transfer.^^  So  goods  in  a  warehouse 
may  be  delivered  in  pledge  by  the  transfer  of  a  receipt  with  such 
intention,  and  goods  on  board  a  vessel  at  sea,  or  on  a  train  in 
transit,  by  delivery  of  the  bill  of  lading,*^^  and  the  delivery  of  the 
key  of  a  warehouse  in  which  goods  are  stored  is  a,  symbolical 
delivery  of  the  goods.®^ 

§  50.  Certain  kinds  of  constructive  delivery  not  good  as 
to  creditors. — Though,  where  a  public  warehouseman  exe- 
cutes and  delivers  to  his  creditor  a  receipt  for  property  contained 

*'  City  Fire  Ins.  Co.  v.  Olmsted,  33  bill  his  goods  to  his  agent  and  store 

Conn.  476 ;  Tuttle  v.  Robinson,  78  111.  them  in  a  separate  warehouse  for  him 

332;   Keiser  v.   Topping,  72  111.  226;  upon    his    making    advances,    equity 

In    re    Collins    Appeal,    107    Pa.    St.  considers  the  property  set  aside  when 

590,  52  Am.  Rep.  479;  Casey  v.  Cav-  the  invoices  are  sent,  though  not  ac- 

aroc,  96  U.  S.  467,  24  L.  ed.  779.     A  tually  set  apart,  and  such  delivery  to 

setting  apart  of  certain  property  as  a  the  pledgee  is  good  against  the  manu- 

pledge  or  security  is  a  sufficient  de-  facturer's  receiver.     Garrison  v.  Ver- 

livery  as  between  the  parties.    F.   P.  mont  Mills,   154  N.   Car.   1,  69  S.  E. 

Gluck  Co.  V.  Therme  (Iowa),  134  N.  743,  31  L.  R.  A.  (N.  S.)  450. 

W.  438.  «« Michigan  Cent.  R.  Co.  v.  Phillips, 

"  Michigan  Cent.  R.  Co.  v.  Phillips,  60   111.    190 ;    Franklin    Nat.    Bank  v. 

60  111.  190;  Whitaker  v.   Sumner,  20  Whitehead.    149    Ind.    560,    49    N.    E. 

Pick.     (Mass.)     399;     Hathaway    v.  592,  39  L.  R.  A.  725,  63  Am.  St.  302; 

Haynes,    124    Mass.    311;    First    Nat.  First     Nat.     Bank    v.     Crocker,     111 

Bank  v.    Kelly,    57   N.    Y.   34;    Cart-  Mass.  163;  Conrad  v.  Fisher,  37  Mo. 

wright  V.  Wilmerding,  24  N.  Y.  521 ;  App.  352.  8  L.  R.  A.  147;  Third  Nat. 

First  Nat.  Bank  v.  Harkness,  42  W.  Bank  v.  Hays,  119  Tcnn.  729,  108  S. 

Va.   156,  24  S.   E.  548,  32   L.   R.   A.  W.   1060,   14  Am.  &  Eng.  Ann.  Cas. 

408;  Freiburg  v.  Drevfus,   135  U.   S.  1049;  Gibson  v.  Stevens,  8  How.  (U. 

478,  24  L.  ed.  206,   10  Sup.  Ct.  716;  S.)  384,  12  L.  ed.  1123;  Rice  v.  Cut- 

Dows  V.   Nat.   Exch.  Bank,  91  U.  S.  ler,  17  Wis.  351.  84  Am.  Dec.  747n. 

618,  23  L.  ed.  214.  ""Ryall  v.  Rolle,  1  Atk.  165;  Chap- 

*' Story  Bailments  (9th  ed.),  §  297;  lin  v.  Rogers,  1  East  192;  Wilkes  v. 

Brown  v.  Warren,  43  N.  H.  430;  Van  Ferris,  5  Johns.   (N.  Y.)  335,  4  Am. 

Blarcom  v.  Broadway  Bank,  37  N.  Y.  Dec.   364n. 
540.     Where  a  manufacturer  was  to 


48  BAILMENTS. 

in  his  warehouse  and  owned  by  him  in  order  to  secure  a  debt  by 
a  lien  upon  the  property,  it  is  a  valid  constructive  delivery  which 
operates  as  a  pledge/"  one  not  a  public  warehouseman  cannot 
make  a  pledge  valid  against  creditors  by  issuing  and  delivering 
certificates  similar  to  the  receipts  of  public  warehousemen,  pur- 
porting to  cover  property  in  the  pledgor's  possession,  where  there 
is  nothing  outside  the  certificate  to  indicate  the  intention  to  create 
a  pledge/^  A  contract  assigning  a  liquor  license  as  collateral 
security  is  not  valid  as  against  creditors  where  it  is  neither  exe- 
cuted, acknowledged,  filed  nor  recorded,  as  required  by  law,  and 
the  license  is  left  in  possession  of  the  assignor.''^  A  book  account 
cannot  be  pledged  by  a  mere  delivery  of  a  copy  of  it,  without 
delivery  of  the  book  itself,  or  any  assignment  in  writing  of  the 
owner's  right,  as  against  a  bank  which  without  notice  collects 
the  account  from  the  debtor  through  a  general  arrangement  with 
the  pledgor,  the  debtor  and  the  collecting  bank  having  no  notice 
of  the  attempted  pledge.'^  When  a  manufacturing  company 
enters  into  an  arrangement  with  a  warehouse  company  by  which 
the  latter  issues  receipts  to  the  former  for  a  portion  of  its  manu- 
factured goods  which  are  left  in  the  possession  of  the  manufac- 
turer, and  stored  on  premises  occupied  by  it,  under  a  lease  pur- 
porting to  be  for  the  warehouse  company,  the  transfer  of  such 
receipts  as  collateral  for  loans  does  not  create  a  valid  pledge  of 
the  goods,  as  against  the  trustee  in  bankruptcy  of  the  manufac- 
turer.'* Where  a  statute  provides  for  recording  of  charges  upon 
personal  property  unless  accompanied  by  actual  possession,  a  bank 
cannot,  by  setting  aside  in  its  vaults  certain  securities  to  secure 
mortgage  certificates  of  deposit,  create  a  superior  right  to  these 

'"State   V.   Robb-Lawrence   Co.,   17  Malting  Co.,  41  Wash.   385,  83   Pac. 

N.  Dak.  257,  115  N.  W.  846,  16  L.  R.  898,  4  L.  R.  A.  (N.  S.)  626. 

A.  (N.  S.)  227  and  note.  "American    Exchange    Nat.    Bank 

'^  Fourth  Street  Nat.  Bank  v.  Tay-  v.  Federal  Nat.  Bank,  226  Pa.  483,  75 

lor,  172  Fed.  177,  96  C.  C.  A.  629,  30  Atl.  683,  27  L.  R.  A.  (N.  S.)  666  and 

L.    R.   A.    (N.    S.)     552    and    note;  note,  134  Am.  St.  1071,  18  Am.  &  Eng. 

Franklin    Nat.    Bank    v.    Whitehead,  Ann.  Cas.  444. 

149  Ind.  560,  49  N.  E.  592,  39  L.  R.  "Security     Warehousing     Co.     v. 

A.  725,  6Z  Am.  St.  302;   Geilfuss  v.  Hand,  206  U.  S.  415,  51  L.  ed.  1117, 

Corrigan.  95  Wis.  651,  70  N.  W.  306,  27  Sup.  Ct.  720,  11  Am.  &  Eng.  Ann. 

2>7  L.  R.  A.  166,  60  Am.  St.  143.  Cas.  789. 

"Deggender  v.  Seattle  Brewing  & 


PLEDGES.  49 

holders  of  certificates  as  against  the  assignee  for  the  benefit  of 
general  creditors. '^^ 

§51.     Delivery  of  negotiable  instruments  in  pledge. — A 

negotiable  instrument  requiring  indorsement  to  make  a  valid 
transfer  should  be  indorsed  and  actually  delivered  in  order  to 
make  a  valid  pledge  good  as  to  everybody. ''*  In  one  or  two 
jurisdictions,  however,  it  is  held  that  such  an  instrument  may  be 
pledged  by  delivery  and  acceptance  and  the  pledge  is  good  against 
subsequent  creditors.^^  A  pledge  of  negotiable  paper  good  be- 
tween the  parties  but  subject  to  outstanding  equities  may  be 
made  by  mere  delivery  to  the  pledgee.'^  Where  a  bona  fide 
pledgee  of  negotiable  instruments  has  received  them  in  the  due 
course  of  business,  before  maturity,  for  a  valuable  consideration, 
and  without  notice  of  any  equities,  he  is  a  pledgee  for  value,  and 
is  entitled  to  the  same  rights  against  the  holders  of  equities  un- 
known to  him  which  a  purchaser  of  the  paper  could  claim  under 
like  circumstances.^^  He  is  under  the  same  duties  as  a  purchaser 
to  inquire  if  there  is  anything  upon  the  face  of  the  paper  which 
would  cause  a  reasonably  prudent  man  to  make  inquiry,  and  for 
failure  to  inquire  is  held  to  notice  of  whatever  he  would  have 
ascertained  by  investigation.®''  There  is  a  conflict  among  the 
authorities  as  to  whether  a  pre-existing  debt  is  such  a  considera- 

'"Burnes  v.  Daviess   County  Bank  gomery,  100  U.  S.  239,  25  L.  ed.  580; 

&c.  Co.,  135  Ky.  355,  122  S.  W.  182,  Kinney  v.  Kruse,  28  Wis.  183.  Where 

25   L.   R.   A.    (N.    S.)    525,    135   Am.  the    owner    of    negotiable    paper    in- 

St.  467.  dorsed   it   in  blank  and   deposited   it 

'"Van   Zile   Bailments    (2d  ed.),    §  in   a  bank   for   safe-keeping   and   an 

242.  officer  of  the  bank  misappropriated  it 

"  Smith   V.    Jennings,    74   Ga.    551 ;  wrongfully     and      pledged      it,      the 

Casey  v.  Schneider,  96  U.  S.  496,  24  pledgee's    right    is    superior    to    the 

L.  ed.   790.  owner's,  even   though  the  bank  offi- 

™  Coombs  V.  Warren,  34  Maine  89;  cer  has,  ostensibly  for  collection,  re- 
Dickey  V.  Pocomoke  City  Nat.  Bank,  covered  the  instrument  and  restored 
89  Md.  280,  43  Atl.  33;  Van  Riper  v.  it  to  its  owner.  Voss  v.  Chamber- 
Baldwin,  19  Hun  (N.  Y.)  344,  85  N.  lain,  139  Iowa  569,  117  N.  W.  269, 
Y.  618.  See  also,  Morris  v.  Preston,  19  L.  R.  A.  (N.  S.)  106n,  130  Am. 
93  111.  215;  Tucker  v.  New  Hamp-  St.  331;  Boston  Steel  &  Iron  Co.  v. 
shire  Sav.  Bank,  58  N.  H.  83,  42  Am.  Stener,  183  Mass.  140,  66  N.  E.  646, 
Rep.  580.  97  Am.  St.  426;  New  Memphis  Gas- 

'"  Exchange  Bank  v.  Butner,  60  Ga.  light  Co.  Cases,  105  Tenn.  268,  60  S. 

654;   Worcester  Nat.  Bank  v.   Chee-  W.  206,  80  Am.  St.  880. 

ney,   87   111.   602;    Warner  v.    Fourth  '"First     Nat.     Bank     v.     National 

Nat.  Bank,  115  N.  Y.  251,  22  N.  E.  Broadway   Bank,   22   App.   Div.    (N. 

172;  Kempner  v.  Comer,  73  Tex.  196;  Y.)  24,  81  N.  Y.  St.  880,  47  N.  Y.  S. 

Gates  V.  First  Nat.  Bank  of  Mont-  880, 
Bailments — 4 


50  BAILMENTS. 

tion  for  the  pledge  of  negotiable  paper  that  the  pledgee  under 
such  circumstances  becomes  a  holder  for  value,  protected  against 
prior  equities.  All  courts  would  hold  such  a  consideration  good 
between  the  parties  to  the  pledge,  but  it  seems  that  the  better  rule  is 
that  unless  the  pledgee  has  surrendered  something  to  the  pledgor, 
and  the  pledgor  has  gained  something  in  return  for  the  pledge, 
there  is  no  such  consideration  moving  between  the  parties  as 
will  give  the  pledgee  any  better  right  than  the  pledgor  had.^^  But 
eminent  authorities  hold  the  contrary  view,  that  a  pre-existing 
debt  is  a  valuable  consideration  for  the  pledge  of  negotiable  se- 
curities, and  protects  the  pledgee  from  all  prior  equities.®^  And 
where  the  pledgor  has  surrendered  other  securities  of  value  or 
extended  the  time  of  payment,  or  where  the  original  debt  has 
been  actually  extinguished,  this  is  a  sufficient  consideration  to 
make  the  transferee  a  holder  for  value.®^  Where  a  note  is  in- 
valid between  the  parties  the  holder  of  the  same  as  collateral  may 
not  recover  the  entire  amount  of  the  note,  but  only  the  amount 
to  which  it  is  collateral.** 

§  52.  Pledge  of  corporate  stock. — It  was  once  thought 
that,  since  a  valid  pledge  requires  the  delivery  of  the  property 
by  the  pledgor  to  the  pledgee,  there  could  be  no  pledge  of  cor- 
porate stock.  But  it  is  now  held  that  it  can  be  pledged  by  trans- 
fer of  possession  of  the  certificate.  Mere  manual  transfer 
of  the  certificate  is  not  sufficient,^^  but  there  must  be  a  transfer 

^'Schloss  V.  Feltus,  103  Mich.  525,  of  Republic,  102  U.  S.  14,  26  L.  ed. 

61    N.   W.   663,   36   L.    R.   A.    161n;  61. 

Phoenix  Ins.  Co.  v.  Church,  81  N.  Y.  ^  Goodwin  v.  Conklin,  85  N.  Y.  21  ; 

218,   59   How.   Pr.    (N.   Y.)    293,   Z7  ]\Iayer  v.  Heidelbach,  123  N.  Y.  22,2, 

Am.    Rep.   494;    Bay  v.    Coddington,  25  N.  E.  416,  9  L.  R.  A.  850.  Time  of 

5  Johns.  Ch.    (N.  Y.)    54;  Comstock  payment     extended.      Farmers'     Nat. 

V.  Hier,  72,  N,  Y.  269.  29  Am.  Rep.  Bank  v.    McCall,   25   Okla.   600,    106 

142.     See  note  31  L.  R.  A.   (N.  S.)  Pac.  866,  26  L.  R.  A.   (N._  S.)   217. 

287.  Note  of  third  party  taken  in  lieu  of 

*^  Exchange  Nat.  Bank  v.   Coe,  94  former    collateral    released    is    valid 

Ark.  387,  127  S.  W,  453,  31  L.  R.  A.  consideration.     Zollman    v.    Jackson 

(N.  S.)  287  and  note;  National  Bank  Trust  &  Sav.  Bank,  238  111.  290,  87 

of  St.  Joseph  V.  Dakin,  54  Kans.  656,  N.  E.  297,  32  L.  R.  A.  (N.  S.)  858n. 

39  Pac.   180,  45   Am.   St.  299;   Mer-  **  Benton  v.   Sikyta,  84  Nebr.  808, 

chants'  Ins.  Co.  v.  Abbott,  131  Mass.  122  N.  W.  61,  24  L.  R.  A.   (N.  S.) 

397;  Spaulding  v.  Kendrick,  172  Mass.  1057. 

71,  51  N.  E.  453 ;  Swift  v.  Tvson,  16  "*  Wagner  v.  Marple,  10  Tex.  Gv. 

Pet.  (U.  S.)  1,  10  L.  ed.  865;"  Brook-  App.  505,  31  S.  W.  691.   See  note,  57 

lyn  City  &c.  R.  Co.  v.  National  Bank  Am.  St  389. 


PLEDGES. 


51 


in  writing.^®  Transfer  by  indorsement  and  upon  the  books  of 
the  company  to  be  held  by  the  pledgee  as  a  pledge  is  of  course  a 
sufficient  delivery,  but  this  is  not  necessary  to  create  a  valid 
pledge,  for  indorsement  of  the  certificate  in  blank  and  its  delivery 
to  the  pledgee  is  sufficient,  as  this  procedure  authorizes  the 
pledgee  to  write  over  the  signature  of  the  owner  a  full  assignment 
and  directions  to  transfer  on  the  books,  such  a  usage  being  well 
recognized  in  business,"  and  the  pledgee's  rights  under  such  a 
transfer  are  superior  to  those  of  subsequent  attaching  creditors,**^ 
unless  the  statute  or  the  charter  of  the  corporation  requires  that 
a  transfer  must  be  recorded  on  its  books  to  be  valid.*^  The 
pledgee  of  stock  has  the  same  right  as  the  owner  to  protect  the 
assets  of  the  corporation.^''  If  he  appears  on  the  books  of  the 
corporation  as  the  owner  of  the  stock,  he  is  liable  as  a  stockholder 
to  its  creditors,''^  and  liable  for  assessments,^-  and  has  the  right 


**  Brewster  v.  Hartley,  Z1  Cal.  15, 
99  Am.  Dec.  237;  Nisbit  v.  Macon 
Bank  &  Trust  Co.,  12  Fed.  686,  4 
Woods  (U.  S.)  464;  Wilson  v.  Little, 
2  N.  Y.  443,  51  Am.  Dec.  307;  French 
V.  White,  78  Vt.  89,  62  Atl.  35,  2  L. 
R.  A.   (N.  S.)  804,  and  note. 

*'  McFall  V.  Buckeye  Grangers  &c. 
Assn.,  122  Cal.  468,  55  Pac.  253,  68 
Am.  St.  47;  Mt.  Holly  &c.  Turnpike 
Co.  V.  Ferree,  17  N.  J.  Eq.  117;  Kort- 
right  V.  Buffalo  Commercial  Bank,  20 
Wend.  (N.  Y.)  91;  German  Union 
Bldg.  &c.  Assn.  v.  Sendmeyer,  50  Pa. 
St.  67. 

**  Scott  V.  Pequonnock  Nat.  Bank, 
15  Fed.  494;  Mapleton  Bank  v.  Stand- 
rod,  8  Idaho  740,  71  Pac.  152,  67  L. 
R.  A.  656  and  note;  Boston  Music 
Hall  Assn.  v.  Cory,  129  Mass.  435; 
Everett  v.  Farmers'  &c.  Bank,  82 
Nebr.  191,  117  N.  W.  401,  20  L.  R.  A. 
(N.  S.)  996  and  note;  State  Banking 
&  Trust  Co.  V.  Taylor,  25  S.  Dak.  577, 
127  N.  W.  590,  29  L.  R.  A.  (N.  S.) 
523. 

'"Parrott  v.  Byers,  40  Cal.  614; 
Fisher  v.  Essex  Bank,  5  Gray  (Mass.) 
2)12) ;  Scripture  v.  Francestown  Soap- 
stone  Co.,  50  N.  H.  571;  Van  Zile 
Bailments  (2d  ed.),  §  251. 

""Andrews  Co.  v.  Columbus  Nat. 
Bank,  129  Ga.  53,  58  S.  E.  633,  12 
Am.  &  Eng.  Ann.  Cas.  616,  121  Am. 


St.  186n,  and  exhaustive  note  upon 
liabilities  and  duties  of  pledgee  of 
corporate  stock;  Green  v.  Hedenberg, 
159  111.  489,  50  Am.  St.  178,  42  N.  E. 
851 ;  Cream  City  Mirror  Plate  Co.  v. 
Coggeshall,  142  Wis.  651,  126  N.  W. 
44,  135  Am.  St.  1091. 

*^  National  Commercial  Bank  v.  Mc- 
Donnell, 92  Ala.  387.  9  So.  149 ;  Adams 
V.  Clark,  36  Colo.  65,  85  Pac.  642,  10 
Am.  &  Eng.  Ann.  Cas.  774,  and  note; 
Calumet  Paper  Co.  v.  Stotts  Inv.  Co., 
96  Iowa  147,  64  N.  W.  782,  59  Am. 
St.  362;  Tierney  v.  Ledden,  143  Iowa 
286,  121  N.  W.  1050,  21  Am.  &  Eng. 
Ann.  Cas.  105 ;  Flynn  v.  American 
Banking  &  Trust  Co.,  104  Maine  141, 
69  Atl.  771,  19  L.  R.  A.  (N.  S.)  428, 
129  Am.  St.  378;  Marshall  Field  & 
Co.  V.  Evans  &c.  Co.,  106  Minn.  85, 
118  N.  W.  55,  19  L.  R.  A.  (N.  S.) 
249  and  note;  Simmons  v.  Hill.  96 
Mo.  679,  10  S.  W.  61,  2  L.  R.  A.  476; 
Pullman  v.  Upton,  9(i  U.  S.  328,  24 
L.  ed.  818;  note,  121  Am.  St.  197. 

*=*  Welles  V.  Larrabee,  Z(^  Fed.  866, 
2  L.  R.  A.  471 ;  Germania  Nat.  Bank 
V.  Case,  99  U.  S.  628.  25  L.  ed.  448; 
Bowden  v.  Johnson,  107  U.  S.  251.  27 
L.  ed.  386,  2  Sup.  Ct.  246.  The 
pledgee  of  bank  stock  takes  subject 
to  the  statutory  right  of  the  bank  to 
forfeit  the  stock  for  nonpayment  of 
assessments.     Corbin    Bkg.    Co.    v. 


52 


BAILMENTS. 


to  vote  the  stock.^^  If  the  transfer  is  not  on  the  books/*  or  the 
stock  is  transferred  to  him  as  pleclgee,^^  he  is  not  liable  as  a 
stockholder.  The  pledgee  of  stock  by  indorsement  may  transfer 
it  and  give  good  title  to  a  bona  fide  purchaser.*^®  The  pledgee  has 
the  right  to  collect  dividends  accruing  on  the  stock  while .  he 
holds  it." 

§  53.  Delivery  of  bills  of  lading,  and  other  quasi-nego- 
tiable papers. — The  transfer  of  a  bill  of  lading  in  a  manner 
which  will  give  to  the  pledgee  possession  and  control  of  the  prop- 
erty which  it  represents  is  necessary  to  constitute  a  valid  pledge, 
but  this  may  be  symbolical.  The  general  rules  as  to  transfer  of 
title  by  bill  of  lading,  discussed  later  in  the  chapter  on  Carriers, 
are  entirely  applicable.^®  In  certain  instances  a  mere  delivery  of 
the  bill  with  intention  to  pledge,  has  been  held  good®^  and  deliv- 
ery of  the  bill  indorsed  in  blank  with  a  similar  intention  is  a  suf- 
ficient delivery.^  A  warehouse  receipt  may  be  delivered  in  pledge 
with  an  indorsement  in  blank,"  and  a  mere  delivery  of  such  re- 


Mitchell,  141  Ky.  172,  132  S.  W.  426, 
31  L.  R.  A.  (N.  S.)  446.  See  note, 
39  L.  R.  A.   (N.  S.)  292. 

»'Haynes  v.  Griffith,  16  Idaho  280, 
101  Pac.  728;  Commonwealth  v.  Dal- 
zell,  152  Pa.  St.  217,  25  Atl.  535,  34 
Am.  St.  640.  See  Cohen  v.  Big  Stone 
Gap  Iron  Co.,  Ill  Va.  468,  69  S.  E. 
359.  Ann.  Cas.  1912,  203  and  note. 

**  Welles  V.  Larrabee,  2,6  Fed.  866, 
2  L.  R.  A.  471;  Henkle  v.  Salem 
Mfg.  Co.,  39  Ohio  St.  547. 

"'Marshall  Field  &  Co.  v.  Evans 
&c.  Co.,  106  Minn.  85,  118  N.  W.  55, 
19  L.  R.  A.  (N.  S.)  249,  and  note. 
Though  stock  was  issued  by  a  corpo- 
ration directly  to  the  person  named 
as  holder,  yet  if  it  was  issued  to  him 
to  secure  the  performance  of  an 
agreement,  he  is  a  pledgee  only,  and 
not  liable  to  creditors  as  a  stock- 
holder. Colonial  Trust  Co.  v.  Mc- 
Millan. 188  Mo.  547,  87  S.  W.  933, 
107  Am.  St.  335.  The  pledgee  takes 
only  a  special  interest  in  such  case. 
Baker  v.  Old  Nat.  Bank,  86  Fed. 
1006;  Paulv  v.  State  Loan  &c.  Co., 
165  U.  S.  606,  41  L.  ed.  844,  17  Sup. 
Ct.  465 ;  White  R.  S.  Bank  v.  Capital 
Sav.  Bank.  77  Vt.  123,  59  Atl.  197, 
1»7  Am.  St.  754. 


'*  Gurley  v.  Reed,  190  Mass.  509.  77 
N.  E.  642;  Newton  v.  Fay,  10  Allen 
(Mass.)  505;  Walker  v.  Detroit 
Transit  R.  Co.,  47  Mich.  338,  11  N. 
'W.  187;  Brick  v.  Brick,  98  U.  S.  514, 
25  L.  ed.  256. 

®^  Maxwell  v.  Greenville  Nat.  Bank, 
70  S.  Car.  532,  50  S.  E.  195,  3  Am.  & 
Eng.  Ann.  Cas.  72Z. 

"*  See  §  140  et  seq. 

«=  Peters  v.  Elliott,  78  111.  321; 
Frederick  v.  Knox,  53  Md.  612 ;  First 
Nat.  Bank  v.  Dearborn,  115  Mass. 
219,  15  Am.  Rep.  92;  First  Nat.  Bank 
of  Cairo  v.  Crocker,  111  Mass.  163; 
Scharff  v.  Meyer,  133  Mo.  428,  34  S. 
W.  858,  54  Am.  St.  672,  42  Cent.  L. 
J.  367;  Richardson  v.  Nathan,  167  Pa. 
St.  513,  31  Atl.  740;  Gibson  v.  Stev- 
ens. 8  How.  (U.  S.)  384,  12  L.  ed. 
1123;  Neill  v.  Rogers  Bros.  Produce 
Co.,  41  W.  Va.  27,  23  S.  E.  702. 

^  Van  Zile  Bailments  (2d  ed.),  §  254. 

^  Franklin  Nat.  Bank  v.  Whitehead, 
149  Ind.  560,  49  N.  E.  592,  39  L.  R. 
A.  725,  63  Am.  St.  302;  Conrad  v. 
Fisher,  Z7  Mo.  App.  352,  8  L.  R.  A. 
147;  Freiburg  v.  Dreyfus,  135  U.  S. 
478,  34  L.  ed.  206,  10  Sup.  Ct.  716; 


PLEDGES. 


53 


ceipt  without  indorsement  with  the  intention  to  pledge  is  good 
between  the  parties."  Likewise,  a  sufficient  pledge  of  an  insur- 
ance policy  may  be  made  by  indorsement  in  blank  and  delivery.* 
The  delivery  in  pledge  of  a  note  secured  by  a  mortgage  carries 
with  it  the  mortgage  security;'"'  but  a  delivery  of  the  mortgage 
unaccompanied  by  delivery  of  the  evidences  of  the  debt  secured 
conveys  no  right." 

§  54.     Pledgee's    right    to    possession    of    pledge. — The 

pledgee  has  the  right  to  exclusive  possession  of  the  thing  pledged, 
and  this  right  is  good  against  all  the  world,  including  the  pledgor, 
during  the  time  for  which  it  was  pledged,  and  continues  until 
the  obligation  which  the  pledge  is  to  secure  is  fully  satisfied.'  To 
maintain  his  rights  the  pledgee  may  bring  replevin  against  one 
who  tortiously  deprives  him  of  possession,^  or  may  bring  trover 
for  a  conversion^  and  as  against  a  third  party  may  recover,  in  the 
latter  action,  the  full  value  of  the  thing  pledged,  being  held  a 
trustee  for  the  pledgor  as  to  any  amount  in  excess  of  his  lien,^" 
but  if  the  pledgor  unwarrantedly  interferes  with  his  possession 
he  may  recover  from  him  only  to  the  extent  of  his  special  inter- 
ests^ The  pledgee  loses  his  right  to  possession  by  redelivery  to 
the  pledgor  with  the  intention  of  abandoning  such  possession,  but 
not  if  he  delivers  it  to  him  for  some  special  purpose,  after  which 
it  is  to  be  returned,^-  or  if  it  is  delivered  to  the  pledgor  as  the 

Rice  V.  Cutler,  17  Wis.  351,  84  Am.  'Noles  v.  Marable,  50  Ala.  366. 

Dec.  747;  Jones  Pledges,  §  280.  "Treadwell   v.   Davis,   34   Cal.   601, 

'Blanc  V.  Germania  Nat.  Bank,  114  94  Am.  Dec.  770;  United  States  Exp. 

La.  739,  38  So.  537;  Gibson  v.  Stev-  Co.  v.  Meints,  72  111.  293. 

ens,  8  How.   (U.   S.)   384,  12  L.  ed.  ""Treadwell  v.   Davis,  34  Cal.  601, 

1123.  94  Am.  Dec.  770;  United  States  Exp. 

*  Norwood  V.  Guerdon,  60  111.  253.  Co.  v.  Meints,  72  111.  293;  Adams  v. 

"Van  Zile  Bailments  (2d  ed.),  §270.  O'Connor,  100  Mass.  515,  1  Am.  Rep. 

'  Colebrooke,    Collateral    Securities,  137. 

185;  Hamilton  v.  Lubukee,  51  111.  415,  "Treadwell  v.  Davis,  34  Cal.  601, 

99  Am.   Dec.   562;   Wanzer  v.   Gary,  94  Am.  Dec.  770;  Hurst  v.  Colev,  15 

76  N.  Y.  526.  Fed.  645;  Ingersoll  v.  Van  Bokkelin, 

^American  Pig  Iron  Storage  War-  7  Cow.  (N.  Y.)  670;  Lyle  v.  Barker, 

rant  Co.  v.  German,  126  Ala.  194,  28  5  Bin.   (Pa.)  457. 

So.    603,    85    Am.    St.    21;    Fowle   v.  "Hutton    v.    Arnett.    51    111.    198; 

Child,   164  Mass.  210,  41   N.   E.  291,  Thayer    v.    Dwight,    104    Mass.    254; 

49  Am.  St.  451 ;  Coleman  v.  Shelton,  First      Nat.      Bank      v.      Bradshaw 

2  McCord  Eq.  (S.  Car.)   126.  16  Am.  (Nebr.),  135  N.  W.  830;  Havs  &  St. 

Dec.  639;   Yeatman  v.   Savings  Inst.,  John  v.  Riddle,  1  Sandf.  (N.  Y.)  248; 

95  U.  S.  764,  24  L.  ed.  589.  Casey  v.  Cavaroc,  96  U.  S.  467,  24  L. 


54  BAILMENTS. 

agent  of  the  pledgee,^'  the  pledgee's  rights  are  at  least  not  lost  as 
against  the  pledgor.  Possession  by  the  pledgee,  it  seems,  is  essen- 
tial as  against  third  parties,  though  the  pledgee's  agent  may  hold 
possession  for  him.^* 

J^55.     Pledgee's    right    to   use — Expenses    and    profits. — 

The  pledgee  has  no  right  to  use  the  property  pledged  to  his  per- 
sonal profit,  or  to  its  injury,  but  only  so  far  as  is  necessary  in 
its  proper  care.^^  All  profit  or  beneficial  use  must  go  to  the 
credit  of  the  pledgor  and  in  fact  becomes  a  part  of  the  pledged 
property  to  be  accounted  for  by  the  pledgee.^*'  This  includes  the 
increase  from  herds,  and  milk  from  cows,^^  likewise  dividends 
collected  on  stocks,^®  and  interest  on  bonds,^**  and  presumably,  if 
the  pledgee  of  a  horse,  or  of  a  machine,  made  use  of  such  pledge, 
the  pledgor  might,  instead  of  suing  for  conversion,  apply  the 
reasonable  value  of  such  use  to  the  reduction  of  the  debt  secured. 
The  pledgee  must  bear  the  expenses  reasonably  necessary  for  the 
proper  preservation  of  the  pledge,  but  these  become  a  charge 
against  the  pledgor,  and  a  part  of  the  debt  secured,  and  must  be 
repaid  before  the  goods  can  be  reclaimed.-"  Among  such  ex- 
penses are  included  the  premiums  on  an  insurance  policy,^^  and 
money  paid  to  remove  an  incumbrance  superior  to  the  lien  of  the 
pledge,^^  or  assessments  on  corporate  stock.^^ 

ed.  779.    See  Manny  v.  Wilson,   122  droscoggin  R.  Co.  v.  Auburn  Bank. 

N.  Y.  S.  16,  137  App.  Div.   (N.  Y.)  48  Maine  335;  IMerrifield  v.  Baker,  9 

140.  Allen   (Mass.)  29. 

^'See     Hale     Bailments,     p.     172;  '' Coggs   v.   Bernard,   2   Ld.  Raym. 

Treadwell  v.  Davis.  34  Cal.  601,  94  909. 

Am.   Dec.   770;    First   Nat.    Bank   v.  "  Hunsaker  v.  Sturgis,  29  Cal.  142; 

Nelson,  38  Ga.  391,  95  Am.  Dec.  400 ;  Maxwell  v.  Greenville  Nat.  Bank,  70 

Day  V.  Swift,  48  Maine  368.  S.  Car.  532,  50  S.  E.   195,  3  Am.  & 

"  Latta  V.  Tutton.  122  Cal.  279,  54  Eng.  Ann.  Cas.  12Z  and  note. 

Pac.  844,  68  Am.   St.   30;   Cooley  v.  "Androscoggin   R.    Co.   v.  Auburn 

Minnesota  Transfer  R.  Co.,  53  Minn.  Bank,  48  Maine  335. 

327,  55  N.  W.  141,  39  Am.  St.  609;  '"Pagan  v.  Thompson,  38  Fed.  467; 

First  Nat.  Bank  v.  Caperton,  74  Miss.  Starrett    v.    Barber,    20   Maine  457 ; 

857,  22  So.  60,  60  Am.  St.  540.  Hills  v.  Smith,  28  N.  H.  369;  Hen- 

^Storv  Bailments  (9th  ed.).  §§  99,  dricks  v.  Robinson,  2  Johns.  Ch.   (N. 

329;  McArthur  V.  Howett,  72  111.  358;  Y.)    283;    Rowan   v.    State   Bank,   45 

Stearns  v.  Marsh,  4  Denio   (N.  Y.)  Vt.   160.    But  see  Meyer  v.  Carmer, 

227,  47   Am.   Dec.   248;   Laurence  v.  135  N.  Y.  S.  64. 

IMaxwell,  53  N.  Y.  19 ;  Thompson  v.  ^  Raley  v.  Ross,  59  Ga.  862 ;  Rowan 

Patrick,  4  Watts  (Pa.)  414.  v.  State  Bank,  45  Vt.  160. 

"  Goddard  Bailments,  §  82 ;  Schou-  "  Furness  v.  Union  Nat.  Bank,  147 

ler  Bailments   (3d  ed.),   §§   211-212;  111.  570,  35  N.  E.  624. 

Hunsaker  v.  Sturgis,  29  Cal.  142 ;  An-  "^  McCalla  v.  Clark,  55  Ga.  53. 


PLEDGES.  55 

§  56.  Care  demanded  of  pledgee — Collection  of  negoti- 
able paper. — Since  a  pledge  is  a  bailment  for  mutual  benefit, 
the  general  rule  applies  that  the  pledgee  is  held  to  exercise  ordi- 
nary care  for  the  preservation  and  protection  of  the  pledge,  and 
what  may  be  such  care  is  dependent  upon  the  character  of  the 
property,  the  situation  of  the  parties,  and  other  circumstances."* 
So  the  pledgee  of  negotiable  paper  held  as  collateral  property  is 
held  under  the  duty  to  take  the  necessary  steps  to  preserve  the 
rights  represented  by  the  paper.^^  If  it  is  indorsed,  he  must 
present  it  for  payment  when  due,  and  if  not  paid,  must  give  the 
notice  necessary  to  charge  the  indorsers,  or  be  liable  for  ensuing 
loss."®  If  a  prudent  man  would  do  so,  he  must  sue  on  the  securi- 
ties," and  if  there  is  danger  of  loss,  he  should  collect  the  col- 
lateral, even  though  the  debt  secured  by  the  pledge  is  not  yet 
due.^^  But  against  the  pledgor  the  pledgee  is  held  to  only  rea- 
sonable diligence  in  attempting  to  collect  negotiable  paper,""  and 
if  he  uses  such  diligence  he  will  not  lose  a  right  to  recover  on  the 
pledge  debt,  even  though  he  has  failed  to  give  notice  of  nonpay- 
ment to  the  pledgor  indorser,  or  to  have  the  note  protested.^" 

=^  Damon    v.    Waldtenfel,    99    Cal.  Am.   Lead.   Cas.   Eq.    (5th   ed.)    411, 

234,  33  Pac.  903 ;  Cooper  v.  Simpson,  423,  note ;  note,  68  L.  R.  A.  482. 
41  Minn.  46,  42  N.  W.  601,  4  L.  R.  A.         ^  Ex  parte    Mure,  2   Cox    Ch.   63 ; 

194.  16  Am.  St.  667;  Ware  v.  Squyer,  Slevin  v.  Morrow,  4  Ind.  425;  Joliet 

81  Minn.  388,  84  N.  W.  126,  83  Am.  Iron  &c.  Co.  v.  Scioto  Fire  Brick  Co.. 
St.  390;  Willets  v.  Hatch,  132  N.  Y.  82  111.  548,  25  Am.  Rep.  34;  Hazard 
41,  30  N.  E.  251,  17  L.  R.  A.  193,  and  v.  Wells,  2  Abb.  N.  Cas.  (N.  Y.)  444; 
note ;  Cutting  v.  IMarlor,  78  N.  Y.  454.  Whitin  v.  Paul,  13  R.  I.  40. 

''Sampson  v.  Fox,  109  Ala.  662,  19  ='HaIe  Bailments,  p.  158;  Van  Zile 

So.  896,  55  Am.   St.  950;   Reeves  v.  Bailments  (2d  ed.),  §  317;  Bizzell  v. 

Plough,  41  Ind.  204;  First  Nat.  Bank  Roberts,  156  N.  Car.  272,  72  S.  E.  378. 

V.  O'Connell,  84  Iowa  377,  51  N.  W.  The  pledgee  of  a  mortgage  upon  real 

162,  35  Am.  St.  313;  Griggs  v.  Day,  estate  may  foreclose  it  upon  breach  of 

136  N.  Y.  152,  32  N.  E.  612,  18  L.  R.  the  condition  of  the  mortgage  unless 
A.  120,  32  Am.  St.  704  and  note,  affd.,  prohibited  by  the  pledge  agreement. 

137  N.  Y.  542,  32  N.  E.  1001 ;  Hazard  Union  Trust  Co.  v.  Hassehine.  200 
V.  Wells,  2  Abb.  N.  Cas.  (N.  Y.)  444;  Mass.  414,  86  N.  E.  777,  16  Am.  & 
Montague  v.   Stehs,  37  S.   Car.  200,  Eng.  Ann.  Cas.  123. 

15     S.     E.     968,     34     Am.     St.    736 ;  =^  Peru  Van  Zandt  I.  Co.  v.  Burnett 

Rumsey  v.  Laidley,  34  W.  Va.  721,  12  (Okla.),  122  Pac.  668;  First  Nat.  Bank 

S.  E.  866,  26  Am.  St.  935.    See  note  of  Philippi  v.  Kittle,  69  W.  Va.  171, 

32  Am.  St.  711-31,  83  Am.  St.  394.  71  S.  E.  109,  37  L.  R.  A.  (N.  S.)  699, 

"■"  Lea  V.  Baldwin,  10  Ga.  208 ;  Scott  and  full  note. 

V.  First  Nat.  Bank,  5  Ind.  Ter.  292,  '"Westphal  v.   Ludlow,  2  McCrarv 

82  S.  W.  751.  68  L.  R.  A.  488n;  Smith  (U.  S.)  505,  6  Fed.  348;  Lawrence  v, 
V.  Miller,  43  N.  Y.  171.  3  Am.  Rep.  McCalmont,  2  How.  (U.  S)  426  11 
690;  Sellers  v.  Jones.  22  Pa.  St.  423;  L.  ed.  326.  See  Coleman  v.  Lewis,  183 
Swift  V.  Tyson,  16  Pet.  (U.  S.)   1,  1  Mass.  485,  67  N.  E.  603,  68  L.  R.  A. 


56  BAILMENTS. 

§  57.  Pledgee's  right  to  assign  pledge. — The  pledge  is 
an  incident  of  the  debt  secured  and  assignable  with  it,  and  the 
assignee  of  the  debt  together  with  the  pledge  obtains  all  the  legal 
rights  of  the  pledgee,  and  stands  in  his  place.^^  The  assignment 
of  the  debt  unaccompanied  by  a  transfer  of  the  pledge  passes  an 
equitable  interest  in  the  security,  for  the  pledgee's  interest  in  the 
property  is  dependent  upon  the  existence  of  the  debt.^^  But  if 
the  pledge  is  negotiable  paper  which  has  been  transferred  to  a 
bona  fide  holder,  the  assignee  of  the  pledge  debt  acquires  no 
rights  against  such  holder.^^  And  in  general  the  assignee  to 
whom  the  pledgee  has  transferred  the  pledge  obtains  only  the 
rights  which  the  pledgee  had,  and  no  greater,  unless  in  the  case 
of  negotiable  paper  taken  in  good  faith  in  due  course,  or  where 
the  owner  has  clothed  the  pledgee  with  apparent  authority,  or 
the  indicia  of  ownership."*  So  to  the  extent  of  his  own  interest 
the  pledgee  may  repledge  the  property,  subject  to  the  terms  and 
restrictions  of  the  original  pledge  contract.^^ 

§  58.  Conversion  by  pledgee. — Since  it  is  the  duty  of  the 
pledgee  to  return  the  pledge  upon  redemption,  a  wrongful  sale 
of  it  is  a  conversion  by  him.^^  But  it  is  optional  with  the  pledgor 
whether  this  shall  be  considered  a  conversion,  and  the  contract 
thus  ended,  or  whether  he  shall  keep  the  contract  in  existence.^^ 

482,  97  Am.  St.  450.     This  rule  was  Cush.    (INIass.)   469;  Ballard  v.  Bur- 
applied  to  the  sale  of  bank  stock  in  gett,  40  N.  Y.  314. 
National  Exch.  Bank  v.  Kilpatric,  204  ^  International     Bank    v.     German 
Mo.  119,  102  S.  W.  499,  120  Am.  St.  Bank,  71  Mo.  183,  36  Am.  Rep.  468; 
689.  Moore  v.  Metropolitan  Nat.  Bank,  55 

"Whitney    v.    Peay,    24    Ark.    22;  N.  Y.  41,  14  Am.  Rep.  173;  Swan  v. 

Brittan  v.  Oakland  Bank  of  Savings,  Produce  Bank,  24  Hun  (N.  Y.)  277; 

124  Cal.  282,  57  Pac.  84,  71  Am.  St.  Combes  v.  Chandler,  33  Ohio  St.  178; 

58;    Bank   of   Forsyth  v.    Davis,    113  Cowdrey  v.  Vandenburgh,  101  U.  S. 

Ga.  341,  38  S.  E.  836,  84  Am.  St.  248;  572,  25  L.  ed.  923. 

Bradley  v.  Parks,  83  111.   169;  Jarvis  '=*  McCombie  v.   Davies,  7   East  5; 

V.  Rogers,  15  Mass.  389;  Chapman  v.  Jarvis  v.  Rogers,  15  Mass.  389;  Lewis 

Brooks,   31    N.    Y.    75;    Duncomb   v.  v.  Mott,  36  N.  Y.  395. 

New  York,  H.  &  N.  R.  Co.,  84  N.  Y.  '"  Stearns   v.    Marsh,   4  Denio    (N. 

190;  Merchants'  Bank  v.  State  Bank,  Y.)    227,   47  Am.   Dec.  248;   Dimock 

10  Wall.  (U.  S.)  604,  19  L.  ed.  1008;  v.  United  States  Nat.  Bank,  55  N.  J. 

Van  Zile  Bailments  (2d  ed.),  §  286.  L.  296,  25  Atl.  926,  39  Am.  St.  643; 

''  Homer  v.  Savings  Bank,  7  Conn.  Glidden  v.  Mechanics'  Nat.  Bank,  530 

478;  Stearns  v.  Bates,  46  Conn.  306;  Ohio  St.  588,  42  N.  E.  995,  43  L.  R. 

Estv  v.  Graham,  46  N.  H.  169.  A.  737  and  note. 

"  Coit  V.   Humbert,   5   Cal.  260,  63  "  Hale  Bailments,  p.  160.   See  cases 

Am.   Dec.   128;   Valette  v.   Mason,   1  cited  in  note,  43  L.  R.  A.  760,  et  seq; 

Ind.    288;    Stoddard    v.    Kimball,    6  Dimock  v.  United  States  Nat.  Bank, 


PLEDGES.  57 

If  he  considers  it  a  conversion,  he  may  either  tender  the  amount 
of  his  debt  and  demand  his  pledge,^*^  or  bring-  an  action  for  dam- 
ages for  the  sale.^^  It  seems  that  the  true  measure  of  damages 
for  such  a  conversion  is  the  market  value  of  the  property  pledged 
at  the  time  of  the  conversion/*  Ordinarily  a  pledgee  may  not 
use  the  thing  pledged  without  the  pledgor's  consent,  and  such  use 
is  a  conversion/^  Or  if  he  has  implied  authority  to  use  the 
pledge,  and  uses  it  beyond  the  extent  of  such  authority,  this 
is  a  conversion.*-  The  pledgor  need  not  tender  the  amount 
due  on  the  debt  in  order  to  maintain  trover  against  a  pledgee 
who  has  put  it  out  of  his  power  to  restore  the  pledge.*^  A 
conversion  of  the  pledge  is  held  to  be  in  effect  a  discharge  of  the 
debt.** 

§  59.  The  pledgor's  warranty  of  title  to  the  pledge. — 
The  pledgor,  of  course,  retains  the  general  property  in  the  pledge, 
subject  to  the  pledgee's  lien.  The  pledgor,  by  entering  into  a 
pledge  contract,  impliedly  warrants  that  he  is  the  owner  of  the 
property  pledged,  or  that  he  has  such  an  interest  that  he  is  le- 
gally entitled  to  pledge  it,  in  analogy  to  the  principle  of  the  law 
of  sales,  which  holds  the  vendor  to  an  implied  warranty  of  his 
ownership  of  the  thing  sold;  and  if  the  pledgee  is  deprived  of 
any  benefit  of  the  pledge  by  reason  of  the  defective  title  of  the 

55  N.  J.  L.  296,  25  Atl.  926,  39  Am.  St.  Pa.   St.  95,  30  Atl.  362 ;   Grimes  v. 

643.    But  a  waiver  of  the  conversion  Watkins,  59  Tex.  133.   See  Wright  v. 

as     to    a   portion    of    the    property  Bank   of  the   Metropolis,    110   N.    Y. 

pledged  is  not  a  waiver  of  the  con-  237,   18  N.  E.  79,   1  L.  R.  A.  289,  6 

version  of  the  entire  property.     State  Am.  St.  356n,  holding  that  true  meas- 

V.    Robb-Lawrence    Co.,    17    N.    Dak.  ure   is    highest   market   value   within 

257,  115  N.  W.  846,  16  L.  R.  A.  (N.  reasonable  time  after  owner  learns  of 

S.)  227.  conversion. 

''Cooper  V.  Ray,  47  111.  53;  Hope  "Lamb  v.   O'Reilly.    13   Misc.    (N. 

V.   Lawrence,    1    Hun    (N.   Y.)    317;  Y.)  212,  68  N.  Y.  St.  114,  34  N.  Y.  S. 

Talty  V.  Freedman's  Savings  &  Trust  235 ;  Hawkins  v.  Hubbard,  2  S.  Dak. 

Co.,  93  U.  S.  321,  23  L.  ed.  886.  631,  51  N.  W.  774. 

•"Leighton  v.  Burkham,  4  Ohio  C.  *^  Ripley  v.   Dolbier,   18  Maine  382. 

D.  692,  7  Ohio  C.   C.  487;   Bush  v.  '^Mullen   v.   J.   J.   Quinlan   &   Co., 

Lvon,  9  Cow.    (N.   Y.)   52;   Cass  v.  195  N.  Y.  109,  87  N.  E.  1078.  24  L. 

Higenbotam,  100  N.  Y.  248,  3  N.  E.  R.   A.    (N.   S.)   511;  Austin  v.  Van- 

189.  derbilt,  48  Ore.  206.   85   Pac.   519.  6 

"Belden    v.    Perkins,    78    111.    449;  L.  R.  A.   (N.  S.)   298,  10  Ann.  Cas. 

Robinson  v.  Hurley,  11  Iowa  410,  79  1123  and  note,  120  Am.  St.  800;  note, 

Am.  Dec.  497n;  Fowle  v.  Ward,  113  43  L.  R.  A.  759. 

Mass.  548,  18  Am.  Rep.  534;  Blood  ♦*  Skud  v.  Tillinghast,  195  Fed.  I. 
V.   Erie   Dime   Savings   &c.    Co.,    164 


58  BAILMENTS. 

pledgor,  the  pledgor  is  liable  in  damages/^  And  if  the  pledgor 
has  undertaken  to  pledge  as  his  own  the  property  of  another 
without  his  consent,  he  is  estopped  from  asserting  against  the 
pledgee  that  he  was  not  the  owner.**'  The  pledgor  may  avoid  the 
absolute  warranty  of  title  by  disclosing  to  the  pledgee  when 
making  the  contract  the  qualified  nature  of  his  interest. 

§  60.  Pledgor's  right  to  assign  subject  to  pledge. — Since 
the  general  property  remains  in  the  owner  he  may  transfer  it  by 
a  contract  upon  sufficient  consideration,  subject  to  the  lien  of 
the  pledgee,  and  all  the  pledgee's  rights/^  The  buyer  may  con- 
tract to  take  upon  himself  all  the  obligations  of  the  pledgor,  even 
becoming  personally  liable  for  the  debt  secured/^  In  order  to 
protect  his  rights,  the  assignee  of  the  pledgor  should  notify  the 
pledgee,  who  then  becomes  the  holder  for  the  assignee,  but  with- 
out such  notice,  the  pledgee  would  not  be  liable  to  the  assignee 
for  the  return  of  the  property  to  the  pledgor.*^  If  upon  default 
and  sale  there  should  be  a  surplus,  the  pledgee  with  notice  would 
hold  such  surplus  for  the  pledgor's  assignee.^" 

§  61.  Pledgor's  right  to  sue  third  parties. — The  pledgee's 
duty  and  right  to  protect  the  possession  of  the  pledge  do  not 
prevent  the  pledgor  from  protecting  his  own  interests,  especially 
in  case  of  the  failure  of  the  pledgee  to  do  so.  For  instance,  if 
the  pledgee  fails  in  his  duty  to  collect  negotiable  paper  when  it 
falls  due,  the  pledgor  may  proceed  with  its  collection,  or  if  nec- 
essary to  protect  his  interest,  may  bring  suit,  as  where  notes  are 
liable  to  become  barred  by  the  statute  of  limitations.^^ 

**  Goldstein  v.   Hort,  30  Cal.  372;  subject  to  the  latter's  rights.   Caroth- 

Mairs  V.  Taylor,  40  Pa.  St.  446.  ers   Warehouse    Bldg.   Assn.   v.    Mc- 

*' Goldstein  v.  Hort,  30  Cal.  372.  Connell,  30  Okla.  394,   121    Pac.   191. 

*' Loughborough    v.     McNevin,    74  **Dupre  v.  Fall,  10  Cal.  430;  Car- 

Cal.   250,    14   Pac.   369,    15   Pac.   IIZ,  rington  v.  Ward,  71  N.  Y.  360. 

5  Am.  St.  435;  Whitaker  v.  Sumner,  ^''Van  Blarcom  v.  Broadway  Bank, 

20  Pick.    (Mass.)    399;   Fettyplace  v.  Z1   N.   Y.   540;    Duell   v.    CudHpp,    1 

Dutch.  13  Pick.   (Mass.)  388,  23  Am.  Hilt.   (N.  Y.)   166. 

Dec.  688:  Bush  v.  Lvon,  9  Cow.   (N.  ^''Van  Blarcom  v.  Broadway  Bank, 

Y.)  52;  Fletcher  v.  Howard,  2  Aiken  Zl  N.  Y.  540. 

(Vt.)   115,  16  Am.  Dec.  686;  Taggart  "' Schouler   Bailments    (3d   ed.),    § 

V.    Packard,   39   Vt.    628.      One    who  204;  Van  Zile  Bailments   (2d  ed.),  § 

purchases  property  from  the  general  277;    O'Kelley    v.    Ferguson,    49   La. 

owner,  knowing  it  is  in  the  posses-  Ann.   1230,  22  So.  783. 
sion    of    another    as    pledgee,    takes 


PLEDGES. 


59 


§62.  The  pledgor's  right  to  redeem. — The  pledgor  can- 
not be  deprived  of  his  right  to  redeem,  even  if  he  has  entered  into 
a  contract  creating  the  pledge  which  provides  that  the  property 
shall  become  irredeemable  upon  his  failure  to  perform  the  obli- 
gation secured  by  the  pledge,  for  such  a  provision  in  a  contract 
is  void  as  against  public  policy.^"  But  after  the  relation  of 
pledgor  and  pledgee  has  been  established  by  delivery,  the  pledgor 
may  agree  with  the  pledgee  that  he  shall  have  title  to  the  pledge 
if  it  is  not  redeemed  by  a  certain  time,  for  this  is  merely  a  condi- 
tional sale  of  the  pledgor's  interest,^^  The  statute  of  limitations 
does  not  begin  to  run  against  the  pledgor  until  he  has  made  a 
tender  of  the  amount  of  the  debt,  and  the  pledgee  has  refused  to 
restore  the  pledge,  for  until  that  time  the  pledgor  has  no  right 
of  action  against  the  pledgee.^*  But  the  pledgor  cannot  recover 
the  pledge  without  paying  the  debt,  even  though  the  statute  of 
limitations  has  run  against  the  debt,  for  though  the  debt  is 
barred,  the  security  is  still  alive.^^  If  the  pledgee  makes  no  de- 
mand for  redemption,  the  pledgor  has  the  right  to  redeem  during 
his  life  and  at  his  death  it  descends  to  his  personal  representa- 
tive.^^ At  common  law  the  pledgor's  interest  is  not  subject  to 
attachment,  garnishment,  or  writ  of  execution,^^  but  this  has  been 
changed  by  statute  in  many  states.^^  Under  none  of  these  stat- 
utes, however,  can  the  sale  of  the  pledgor's  interest  on  judicial 

*^  Vickers    v.    Battershall,    84    Hun  lien  is  lost  because  the  debt  is  barred, 

(N.  Y.)  496,  32  N.  Y.  S.  314;  Clark  yet  the  courts  will  not  aid  the  pledgor 

V.    Henry,    2    Cowen     (N.  Y.)    324;  to   recover   without  paying  his   debt. 

Lucketts  V.  Townsend,  3  Tex.  119,  49  Puckhaber  v.  Henry,  152  Cal.  419,  93 

Am.   Dec.   723;    Peugh   v.  Davis,  96  Pac.    114,    125   Am.  St.  75,    14  Am.  & 

U.  S.  332,  24  L.  ed.  775.  Eng.  Ann.  Cas.  844. 

^  Beattv  V.  Sylvester,  3  Nev.  228.  '°  White  River   Sav.  Bank  v.   Cap- 

•^Van  "Zile  Bailments  (2d  ed.),  §  ital  Sav.  Bank  &c.  Co.,  77  Vt.  123, 
280;  Story  Bailments  (9th  ed.),  §  59  Atl.  197,  107  Am.  St.  754. 
346;  Cross  v.  Eureka  L.  &  Y.  Canal  ^'Jennings  v.  Mcllroy,  42  Ark.  236, 
Co.,  73  Cal.  302,  14  Pac.  885,  2  Am.  48  Am.  Rep.  61 ;  Treadwell  v.  Davis, 
St.  808;  Hancock  v.  Franklin  Ins.  34  Cal.  601,  94  Am.  Dec.  770;  Wins- 
Co.,  114  Mass.  155;  Wheeler  v.  Bres-  low  v.  Fletcher,  53  Conn.  390,  4  Atl. 
lin,  47  Misc.  (N.  Y.)  507,  95  N.  Y.  250,  55  Am.  Rep.  122n ;  Hall  v.  Page, 
S.  966 ;  Whelan's  Exr.  v.  Kingsley's  4  Ga.  428,  48  Am.  Dec.  235 ;  Soule  v. 
Admr.,  26  Ohio  St.   131.  White,     14    Maine    436;     Badlam    v. 

''Note,  95  Am.  St.  662;  Conway  v.  Tucker,  1  Pick.   (Mass.)  389,  11  Am. 

Caswell,    121    Ga.   254,  48  S.   E.  956,  Dec.  202;  Wilkes  v.  Ferris,  5  Johns. 

2  Am.  &  Eng.  Ann.  Cas.  269;  Jones  (N.   Y.)    335,  48  Am.   Rep.  61. 

V.  Merchants'  Bank,  6  Rob.  (N.  Y.)  ''"See  Hale  Bailments,  p.  130. 
162.    Even  if  by  statute  the  pledgee's 


6o  BAILilENTS. 

process  divest  or  diminish  the  interest  of  the  pledgee,  for  the 
creditor  can  take  no  greater  right  than  the  pledgor  had.'^ 

§63.     Termination  of  the  relation  by  the  pledgor. — The 

normal  termination  of  a  pledge  relationship  is  through  the  per- 
formance by  the  pledgor  of  the  obligation  secured.  Payment 
of  the  debt  secured  and  expenses  incurred  will  discharge  the 
lien.*^°  Or  if  the  pledgee  sues  on  the  debt,  and  it  is  satisfied  by 
the  sale  upon  execution  of  other  property,  the  property  is  re- 
leased.®^ If  the  pledgor  tenders  the  proper  amount,  which  the 
pledgee  refuses  to  accept,  this  is  a  sufficient  performance,  and 
it  is  not  necessary  to  keep  the  tender  good,  or  pay  the  money 
into  court,  as  in  satisfying  a  debt,  and  the  wrongful  refusal  of 
the  pledgee  to  accept  payment  is  a  conversion,  and  makes  him 
liable  absolutely  for  the  pledge,®"  though  he  does  not  lose  his 
right  to  collect  the  debt  secured.®^  The  pledgor's  default  gives 
the  pledgee  a  right  to  consider  the  relationship  ended,  and  to 
proceed  to  his  remedy  by  sale.®*  But  he  may  elect  to  retain  the 
pledge  until  the  debt  is  paid,  and  continue  the  contract  in  force, 
and  ordinarily  the  pledgor  can  not  prevent  this,®^  though  it  has 
been  held  that  where  goods  are  likely  to  perish  or  depreciate 
greatly  in  value,  the  pledgor  by  a  bill  in  equity  may  compel  their 
sale.®® 

§  64.  Termination  by  consent  of  parties  or  operation  of 
law. — The  parties  may  terminate  the  relation  at  any  time  by 
mutual  agreement.    The  destruction  of  the  chattel  pledged  works 

~Briggs  V.  Walker,  21  N.  H.  12.  "Ball  v.  Stanlev,  5  Yerg.    (Tenn.) 

•"Van   Zile   Bailments    (2d   ed.),    §  199,  26  Am.  Dec.  263. 

293;    Hale   Bailments,    §    36,   p.    173;  "^Van   Zile   Bailments    (2d  ed."),    § 

Goddard  Bailments,  §  96;  Clark  Con-  295;  Goddard  Bailments,  §  97;  Schou- 

tracts  (1894),  629  et  seq.    See  Merrill  ler  Bailments  (3d  ed.).  §  244. 

V.  Hodgkins.  134  N.  Y.  S.  166.  ''  Rozet  v.  WcClellan.  48  111.  345,  95 

"Hale  Bailments,  p.  173.  Am.  Dec.  551;  Robinson  v.  Hurley,  11 

^  Loughborough    v.    McNevin,    74  Iowa  410,  79  Am.  Dec.  497. 

Cal.  250,  14  Pac.  369.  5  Am.  St.  435;  ''In    the   case   of    National    Exch. 

Norton  v.   Baxter,  41    ]\Iinn.   146,  42  Bank  v.   Kilpatric,  204  Mo.   119,   102 

N.  W.  865,  4  L.  R.  A.  305,  16  Am.  St.  S.  W.  499,   120  Am.   St.  689,  it  was 

679;  Mover  v.  Leavitt,  82  Nebr.  310,  held   that   a   bank    holding    stock   as 

117  N.  W.  698,  130  Am.  St.  682.    See  collateral  which  failed  to  sell  it  at  par 

Desgroseillers  v.   Anderson,  36  Que.  when  ordered   by  the  pledgor,   must 

Super.  Ct.  234,  18  Am.  &  Eng.  Ann.  bear  the  loss  when  the  stock  becomes 

Cas.  718.  worthless. 


PLEDGES.  6 1 

by  operation  of  law  the  temiination  of  the  relation,"'  but  the 
death  of  one  of  the  parties,*"*  or  the  pledgor's  bankruptcy""  or 
any  change  in  legal  status  has  no  such  effect.  The  pledgee  may, 
of  course,  at  any  time,  by  voluntarily  redelivering  the  pledge  for 
the  purpose,  terminate  the  pledge  relationship.'*^  lie  may  volun- 
tarily release  it,  take  other  security  in  its  place,  or  release  his 
rights.  The  release  of  the  debt  operates  of  course  as  a  release 
of  the  pledge,  but  merely  taking  additional  security  or  taking  a 
new  note  will  not  terminate  the  pledge,  tinless  the  parties  so  in- 
tended.'^ A  wrong  of  the  pledgee  which  results  in  injury  to  the 
pledge,  or  any  act  of  conversion  terminates  the  pledge  at  the 
pledgor's  option,'"  and  so  if  the  pledgor  makes  a  tender  of  the 
debt  secured,  which  the  pledgee  refuses  to  accept,  the  latter  has 
lost  his  right  to  the  pledge  as  security,  but  still  has  his  right  of 
action  for  the  debt,  though  as  to  the  pledge  he  is  a  wrongdoer, 
and  has  converted,  it  to  his  own  use.'^  Upon  default  by  the 
pledgor,  the  pledgee  may  terminate  the  relationship  by  sale  of  the 
pledge,  in  a  lawful  manner,  which  will  be  considered  in  succeed- 
ing sections.'*  The  mere  renewal  of  an  obligation  to  pay  money 
does  not  release  or  discharge  securities  deposited  as  collateral,'^ 
and  it  is  held  that  property  pledged  collaterally  will  be  released 

®'Van  Zile  Bailments    (2d   ed.),    §  the  pledge  is  lost  by  the  subsequent 

328;  Goddard  Bailments,  §  95.  substitution   for  it  of  other  property 

**  Warrior    Coal    &c.    Co.    v.    Nat.  of  like  character.     Swedish- American 

Bank    (Ala.),   53   So.  997;   Hoare  v.  Nat.    Bank    v.    First    Nat.    Bank,    89 

Parker,    2    T.    R.    376     (unless    the  Minn.  98,  94  N.  W.  218,  99  Am.  St. 

pledgor  had  only  a  life  interest  in  the  549. 
property).  '^Goddard  Bailments,  §   107;  Story 

"•Bell   V.   Hanover   Nat.    Bank,   57  Bailments    (9th    ed.).    §§    360,    365; 

Fed.  821;  Dov/ler  v.  Cushwa,  27  Md.  Schouler  Bailments    (3d  ed.),   §  263. 

354;    Yeatman    v.    Savings    Inst.,    95  The  taking   of   the   note   of   a   third 

U.  S.  764,  24  L.  ed.  589;  Jerome  v.  person  for  the  amount  of  an  overdue 

McCarter,  94   U.    S.   734,   24  L.   ed.  note,    with    such    note    as    collateral 

136.  thereto,  may  release  property  held  as 

™Treadwell  v.  Davis,  34  Cal.  601,  collateral  for  the  overdue  note.    Lin- 

94  Am.  Dec.  770;  Collins  v.  Buck,  63  coin  v.  Nat.  Met.  Bank.  35  App.   (D. 

Maine  459;  Jar\'is  v.  Rogers,  15  Mass.  C.)  362,  30  L.  R.  A.  (N.  S.)  1215. 
389;    First    Nat.    Bank   v.    Bradshaw        '=Whitlock  v.   Heard,   13  Ala.  776, 

(Nebr.),  135  N.  W.  830,  39  L.  R.  A.  48  Am.  Dec.  12>.     See  cases  cited  un- 

(N.  S.)  886;  Black  v.  Bogert.  65  N.  der  §  58. 

Y.  601;  Grinnell  v.  Cook,  3  Hill  (N.        '"See  cases  cited  under  note  (>i. 
Y.)  485,  38  Am.  Dec.  663;  Fletcher  v.        '*  See  §  66  et  seq. 
Howard,  2  Aikens  (Vt.)   115,  16  Am.         '"  First   Nat.    Bank  v.   Gunhus,   133 

Dec.  686.    A    pledge  of    property   sit-  Iowa  409,  110  N.  W.  611,  9  L.  R.  A. 

uated  in  a  warehouse  is  restricted  to  (N.  S.)  471. 
the    identical   property   pledged,   and 


62  BAILMENTS. 

under  the  same  circumstances  that  a  surety  who  is  personally 
bound  would  be/^ 

§  65.  Redelivery. — The  pledgee  is  under  the  same  duty 
to  redeliver  as  any  other  bailee,  and  when  the  pledge  is  redeemed, 
he  must  return  the  article  pledged,  together  with  all  its  increase 
and  profits."  He  must  return  the  identical  property  received," 
except  that  in  the  case  of  certificates  of  stock  he  may  return  other 
certificates  of  precisely  similar  character.''^ 

§  66.  Pledgee's  remedies  upon  pledgor's  default. — Upon 
default  in  his  obligation  by  the  pledgor,  the  pledgee  may  either 
sue  upon  the  debt,  in  which  instance  he  retains  his  lien  upon  the 
pledge  until  the  satisfaction  of  the  debt  secured  by  the  pa3'ment 
of  the  judgment,  or  exercise  his  power  of  sale  of  the  property  at 
common  law,  upon  notice  to  the  pledgor,  by  a  proceeding  in 
equity,  under  a  special  power  given  by  special  contract,  or  under 
a  power  given  by  statute.*® 

§  67.  Suit  on  the  debt. — The  holding  of  a  pledge  as  se- 
curity for  a  debt  does  not  prevent  a  suit  on  the  debt,  and  the 
pledgee  may  sue  on  the  debt  while  retaining  the  pledge  as  se- 
curity, and  may  hold  the  pledge  until  the  judgment  obtained  in 
the  suit  is  satisfied,  for  the  pledge  is  good  until  the  debt  is  satis- 
fied,*^ and  it  is  held  that  the  debt  is  not  extinguished  by  being 
merged  in  the  judgment  to  such  an  extent  as  to  release  the 
pledge.*^    Even  though  the  pledgor  has  tendered  the  amount  of 

'*  Daviess  County  Bank  &  Trust  Co.  162,  §  35;   Van   Zile   Bailments    (2d 

V.  Wright,  33  Ky.  L.  457,  110  S.  W.  ed.),  §  296;  Goddard  Bailments,  §98; 

361,  17  L.  R.  A.   (N.  S.)   1122.  White    River    Sav.    Bank   v.    Capital 

"Schouler   Bailments    (3d   ed.),    §  Sav.  Bank,  77  Vt.   123,   107  Am.   St. 

259;  American  Pig  Iron  Co.  v.  Ger-  754;   note,   73  Am.    St.   566.     But  a 

man,  126  Ala.  194,  28  So.  603,  85  Am.  statutory    provision    for    notice    and 

St.  21;    Stearns   v.    Marsh,    4   Denio  public  sale,  being  for  the  benefit  of 

(N.  Y.)  227,  47  Am.  Dec.  248;  Dean  the  pledgor,  may  be  waived  by  the 

V.  Lawham,  7  Ore.  422.  pledgor.      Ardmore    State    Bank    v. 

"Bryson  v.  Rayner,  25  Md.  424,  90  IMason,  30  Okla.  568,   120  Pac.   1080. 

Am.  Dec.  69 ;  Ball  v.  Stanley,  5  Yerg.  "  See  cases  cited  in  note  82.  Skud  v. 

(Tenn.)    199,  26  Am.  Dec.  263.  Tillinghast,  195  Fed.  1;  De  Cordova 

"Atkins  V.  Gamble,  42  Cal.  86,  10  v.  Barnum,  130  N.  Y.  615,  29  N.  E. 

Am.  Rep.  282 ;  Worthington  v.  Tor-  1099,  27  Am.  St.  538. 

mey,  34  Md.  182;  Gruman  v.  Smith,  ^^  Black  v.  Reno,  59  Fed.  917;  Har- 

81  N.  Y.  25 ;  Gilpin  v.  Howell,  5  Pa.  ding  v.  Hawkins,  141  111.  572.  31  N. 

St.  41,  45  Am.  Dec.  720.  E.   307,   33   Am.    St.   347;    Jones   v. 

*"See  §§67-71.  Hale  Bailments,  p. 


PLEDGES.  63 

the  debt,  and  this  has  been  refused,  the  pledgee  still  has  his 
remedy  upon  the  debt,  though  he  has  lost  his  lien  upon  the 
pledge.*^  If  the  pledgee  in  his  suit  upon  the  debt  attaches  the 
pledged  property,  or  levies  an  execution  upon  it,  he  is  held  to 
have  waived  the  lien  of  the  pledge,  since  he  has  by  the  levy  ad- 
mitted that  the  property  is  in  the  possession  of  the  pledgor  sub- 
ject to  execution,  or  attachment,  and  thus  he  is  estopped  from 
setting  up  in  himself  a  right  to  its  possession.^*  The  pledgor, 
virhen  sued  on  the  pledge  debt,  cannot  set  off  the  value  of  the 
pledge  at  common  law^^  unless  it  has  been  converted,®"  but  in  sev- 
eral states  the  pledgee  who  sues  on  the  debt  must  produce  the 
pledge  or  be  liable  for  its  value,  at  the  time  of  trial.®^ 

§  68.  Common-law  sale  of  the  pledge. — Upon  default  by 
the  pledgor,  the  pledgee  may  make  a  demand  for  payment,  and 
if  he  fails  to  comply,  the  pledgee  may  then,  after  reasonable  no- 
tice to  the  pledgor  of  the  time  and  place  of  the  sale,  sell  the 
property  pledged  at  public  auction.®^  Notice  is  necessary  because 
the  pledgor  has  the  right  to  redeem  at  any  time  before  the  sale, 
and  also  in  order  that  he  may  see  that  the  sale  is  conducted 
fairly,  and  may  find  prospective  purchasers  to  make  the  price 
better,  and  the  pledgee  cannot  lawfully  sell  without  giving  no- 
tice,*°  unless  the  debtor  is  informed  of  the  time  and  place  of  the 

Scott,  10  Kans.  33;  Smith  v.  Strout,  Bank  of   British    Columbia   v.    Mar- 

63  Maine  205;  Wallace  v.  Finnegan,  shall,  8  Sawy.  (U.  S.)  29,  11  Fed.  19; 

14    Mich.    170,    90    Am.     Dec.    243;  Bigelow  &  Co.  v.  Walker,  24  Vt.  149, 

note,  73  Am.  St.  567;  contra,  Ameri-  58  Am.  Dec.  156. 

can  Bonding  Co.  v.  Loeb,  50  Wash.  "  See   cases   cited   in   note   preced- 

104,  96  Pac.  692,  126  Am.  St.  891.  ing.    Ocean  Nat.  Bank  v.  Faut,  50  N. 

^  Potts  V.   Plaisted,  30  Mich.   149;  Y.  474;  Stuart  v.  Bigler's  Assignees, 

Norton  v.  Baxter,  41   Minn.   146,  42  98  Pa.  St.  80. 

N.  W.  865,  4  L.  R.  A.  305  and  note,  *'Mauge  v.  Heringhi,  26  Cat.  577; 

16  Am.   St.  679;   Kortright  v.   Cady,  McDowell  v.    Chicago    Steel    Works, 

21  N.  Y.  328,  17  Am.  Dec.  145 ;  cases  124  111.  491,  16  N.  E.  854,  7  Am.  St. 

cited  in  note  63.  381 ;  Sell  v.  Ward,  81  111.  App.  675 ; 

"^Legg  V.  Willard,  17  Pick.  (Mass.)  Robinson  v.  Hurley,  11  Iowa  410.  79 

140,  28  Am.  Dec.  282 ;  Buck  v.  Inger-  Am.  Dec.  497 ;  In  re  Jeane's  Appeal, 

soil,   11   Mete.    (Mass.)    226;   contra,  116  Pa.   St.  573,   11  Atl.  862.  2  Am. 

Arendale  V.  Morgan,  5  Sneed  (Tenn.)  St.  624;  Toronto  Gen.  Trusts  Corp. 

703.  V.   Cent.  .Ontario  R.   Co..   10  Ont.  L. 

**Winthrop  Sav.  Bank  v.  Jackson,  R.  347,  4  Ann   Cas.   1163  and  cases 

67  Maine  570,  24  Am.  Rep.  56.  cited  in  note. 

^Stearns   v.    Marsh,   4   Denio    (N.  ^''McDowell      v.       Chicago       Steel 

Y.)   227,  47  Am.   Dec.  248;   Cass  v.  Works,    124   111.   491,    16   N.    E.   854, 

Higenbotam,    27    Hun    (N.    Y.)    406,  7  Am.  St.  381;  Milliken  v.  Dehon,  27 

revd.   100  N.   Y.  248,  3   N.   E.    189;  N.  Y.  364;  In  re  Jeane's  Appeal,  116 


64 


BAILMENTS. 


sale  from  other  sources,  and  then  notice  is  unnecessarj^,®"  since 
actual  notice  is  all  that  the  law  requires.  The  rule  is  that  the 
pledgee  has  not  the  right  to  purchase  at  his  own  sale,  and  if  he 
does,  the  sale  is  voidable  at  the  option  of  the  pledgor.^^  If  he 
avoids  the  sale  the  pledge  is  in  the  same  condition  as  before,  the 
pledgee  still  holding  his  lien  for  the  debt  secured.^^  The  pledgee 
must  exercise  the  utmost  good  faith  in  the  sale,  and  must  hold 
it  at  a  reasonable  time,  and  at  a  proper  place.^"  As  to  any  sur- 
plus of  the  proceeds  of  the  sale  of  the  pledged  property,  over  the 
amount  of  the  debt  secured,  the  pledgee  is  a  trustee  for  the 
pledgor.^*  If  notice  cannot  be  given  to  the  pledgor  because  he 
cannot  be  found,  a  judicial  sentence  is  necessary  to  a  valid  sale 
by  the  pledgee."^  If  the  sale  is  legally  and  fairly  conducted,  in- 
adequacy of  price  is  not  a  ground  for  setting  it  aside.^® 

§  69.     Sale  in  equity. — The  pledgee  who  has  an  adequate 

remedy  at  law  is  not  entitled  to  go  into  equity,  and  it  seems  that 


Pa.  St.  573,  11  Atl.  862,  2  Am.  St. 
624.  But  see  as  to  waiver  by 
pledgor,  Ardmore  State  Bank  v. 
Mason,  30  Okla.  568,   120  Pac.   1080. 

*°  Jones  on  Pledges,  §  613;  Alex- 
andria L.  &  H.  R.  Co.  V.  Burke,  22 
Grat.   CVa.)  254. 

"'Hill  V.  Finigan,  11  Cal.  267,  19 
Pac.  494,  11  Am.  St.  279n ;  Winchester 
V.  Joslyn.  31  Colo.  220,  72  Pac.  1079, 
102  Am.  St.  30;  Glidden  v.  Mechanics 
Nat.  Bank.  53  Ohio  St.  588.  42  N.  E. 
995,  43  L.  R.  A.  Ill  and  note; 
Thomas  v.  Gilbert,  55  Ore.  14,  101 
Pac.  393,  104  Pac.  888;  Ann.  Cas. 
1912A.  516  and  note.  See  Holston 
Bank  v.  Wood  (Tenn.),  140  S. 
W.  31,  where  it  was  held  that  the 
pledgor  may  not  hold  liable  for  con- 
version the  pledgee  who  purchases 
collateral  at  his  own  sale,  but  who 
retains  possession  and  does  not  re- 
fuse to  return  them  upon  tender  of 
amount  of  the  debt. 

'"  Farmers  Loan  &c.  Co.  v.  Toledo 
&c.  R.  Co..  54  Fed.  759;  Stokes  v. 
Frazier,  72  111.  428 ;  Bank  of  Old  Do- 
minion V.  Dubuque  &c.  R.  Co.,  8 
Iowa  277,  74  Am.  Dec.  302;  Brvson 
V.  Ravner,  25  Md.  424,  90  Am.  Dec. 
69;  Bryan  v.  Baldwin,  52  N.  Y.  232; 
Glidden  v.  Mechanics'  Nat.  Bank,  53 


Ohio  St.  588,  42  N.  E.  995,  43  L.  R. 
A.  HI. 

°^  Guinzburg  v.  H.  W.  Downs  Co., 
165  Mass.  467,  43  N.  E.  195,  52  Am. 
St.  525;  Hagan  v.  Nat.  Bank,  182 
Mo.  319,  81  S.  W.  171 ;  King  v.  Texas 
Banking  &  Ins.  Co.,  58  Tex.  669. 

"Jones  Pledges,  §§  649,  650;  Tay- 
lor V.  Turner,  87  III.  296;  IMiles  v. 
Walther.  3  Mo.  App.  96;  Foster  v. 
Berg  &  Co.,  104  Pa.  St.  324.  Where 
a  pledgee  who  foreclosed  a  mortgage 
purchased  the  property  to  prevent 
sacrifice,  under  a  power  given  in  the 
mortgage,  but  was  not  authorized  by 
the  pledge  contract  to  purchase  at 
his  own  sale,  he  holds  as  the  trustee 
for  the  pledgor,  subject  to  his  right 
to  redeem.  Union  Trust  Co.  v.  Has- 
sehine,  200  ]\Iass.  414,  86  N.  E.  171, 
16  Ann.  Cas.   123. 

°^  Indiana  &c.  R.  Co.  v.  McKernan, 
24Ind.  62;  Garlick  v.  James,  12  Johns. 
(N.  Y.)  146,  7  Am.  Dec.  294n; 
Stearns  v.  Marsh,  4  Denio  (N.  Y.) 
227.  47  Am.  Dec.  248. 

^  Farmers'  Nat.  Bank  v.  Venner, 
192  ]\Iass.  531,  78  N.  E.  540.  7  Ann. 
Cas.  690.  Nor  the  fact  that  but  one 
bidder  attended.  Guinzburg  v.  H.  W. 
Downs  Co.,  165  Mass.  467,  43  N.  E. 
195,  52  Am.  St.  525. 


PLEDGES.  65 

only  where  there  is  an  accounting  necessary,"^  or  where  there 
are  conflicting  claims  or  intervening  rights  to  the  property,"**  or 
where  tlie  pledgor  cannot  be  personally  notified,"''  is  the  pledgee 
entitled  to  bring  a  bill  in  equity,  and  obtain  a  decree  for  the  sale 
of  the  property. 

§  70.  Sale  under  statute. — In  most  of  the  states  the  fore- 
closure of  a  pledge  and  its  sale  is  regulated  by  statute.  In  some 
of  these  states  any  other  method  of  sale  is  forbidden,  in  others 
sale  at  common  law,  or  under  a  special  power  given  by  contract, 
is  permitted  as  well  as  the  statutory  sale.  It  is  sufficient  to  say 
here  that  before  foreclosing  any  pledge,  the  statutes  of  the  state 
where  the  foreclosure  is  sought  should  be  examined. 

§  71.     Sale  under  the  provisions  of  a  special  contract. — 

The  parties  may  agree  upon  the  power  of  the  pledgee  to  sell  the 
pledge  upon  default,  upon  such  conditions  as  they  see  fit,  so  long 
as  they  are  not  illegal,  or  unconscionable.  Thus  if  permitted  by 
contract  the  sale  may  be  held  privately,  demand  and  notice  may 
be  omitted,  the  pledgee  may  purchase  at  the  sale,  or  the  pledgee's 
liability  may  be  increased,^  but  a  provision  in  the  pledge  contract 
that  the  pledgee  shall  become  absolute  owner  upon  default  is  un- 
enforcible,^  this  being  perhaps  the  only  strict  limitation  upon  the 

"Durant  V.  Einstein,  35  How.  Prac.  cured  by  a  pledge  of  collateral,  giv- 

(N.   Y.)    223,  5   Rob.    (N.    Y.)    423;  ing    the    holder    the    right    to    make 

In   re   Conyngham's   Appeal,   57   Pa.  such  use  of  the  collateral  as  he  may 

St.  474.  desire,    so    that    he    returns    to    the 

•*  American    Pig  Iron    Co.   v.    Ger-  pledgor  collateral  of  the  same  amount 

man,  126  Ala.  194,  28  So.  603,  85  Am.  and  kind,  gives  him  no  right  to  sell 

St.   21 ;    Horner  v.    Savings   Bank,   7  and  end  the  pledgor's  rights,  before 

Conn.   478;    Robinson    v.    Hurley,    11  default    in    payments    on    the    note. 

Iowa  410,  79  Am.  Dec.  497n ;  Boyn-  Commonwealth      v.      Atlhause,      207 

ton  V.  Payrow,  67  Maine  587;  Cleg-  Mass.  32,  93  N.  E.  202,  31  L.  R.  A. 

horn  V.  Minnesota  Title  Co.,  57  Minn.  (N.  S.)  999n. 
341,  59  N.  W.  320,  47  Am.  St.  615.  '  New  York  L.  Ins.   Co.  v.  Curry, 

•'See  cases  cited  under  note  95.  115  Ky.  180,  72  S.  W.  736,  103  Am. 

'Schouler   Bailments    (3d   ed.),   §§  St.  297.     See  Darrill    v.    Eaton.    35 

225,  249;  Farmers'  National  Bank  v.  Mich.  302.     It  was  held  in  Kentucky 

Venner,  192  Mass.  531,  78  N.  E.  540,  that   one   may  not  assign   a   paid-up 

7  Ann.  Cas.  690;  Cooper  v.  Simpson,  insurance    policy    to    the     insurance 

41   Minn.  46,  42  N.  W.  601,  4  L.  R.  company  as  collateral  for  a  loan  and 

A.    194,    16  Am.    St.   667;    Palmer  v.  give  it  the  right  to  forfeit  the  policy, 

Mutual  L.  Ins.  Co.,  114  Minn.  1,  130  or  cancel  it  upon  default  (Mutual  L. 

N.  W.  250.    In  re  Jeane's  Appeal,  116  Ins.  Co.  v.  Twyman,  122  Ky.  513,  Q2 

Pa.  St.  573,   11   Atl.  862,  2  Am.   St.  S.  W.  335,  121  Am.  St.  471)  but  that 

624.     A    provision    in    a    note    se-  he  may  surrender  it  at  its  cash  value 
Bailments — 5 


6^  BAILMENTS. 

power  of  the  parties  to  contract  that  the  sale  shall  be  carried  out 
in  any  manner  they  see  fit. 

§  72.     Further   of  pledgee's   rights   in   case   of   default — 
Where  pledge  is  a  chose  in  action,  or  corporate  stock. — The 

rule  is  that  where  the  pledge  is  divisible,  the  pledgee  can  sell 
no  more  than  enough  to  satisfy  his  debt,  or  the  sale  may  be 
avoided  by  the  pledgor.^  It  is  also  the  pledgee's  duty  to  try  to 
realize  the  most  possible  for  the  pledgor  by  the  sale,  and  if  the 
property  would  bring  more  divided  and  sold  in  separate  parcels 
or  lots  than  if  sold  altogether,  it  is  his  duty  so  to  sell  it.*  Default 
by  the  pledgor  of  a  negotiable  instrument  does  not  authorize 
the  pledgee  to  sell  it,  in  the  absence  of  special  contract,  but  his 
remedy  is  to  hold  it  and  collect  it  as  it  becomes  due,  applying  the 
proceeds  upon  the  pledge  debt.^  As  was  said  in  a  preceding  sec- 
tion, the  pledgee  of  negotiable  instruments  is  held  to  due  dili- 
gence in  collecting  them,  and  when  they  become  due,  is  entitled 
to  maintain  an  action  upon  them,  whether  or  not  the  pledge  debt 
is  due.*  He  has  no  right  to  compromise  upon  negotiable  securi- 
ties by  accepting  a  less  amount  than  is  due,  and  the  general  rule 
is  that  if  he  does  he  is  liable  to  the  pledgor  for  the  difference 
between  the  amount  accepted  and  the  face  of  the  security,^  though, 
a  compromise  may  be  upheld  in  a  case  where  the  maker  is  insol- 
vent, and  it  was  for  the  best  interest  of  the  pledgor  as  well  as  the 
pledgee.*  It  has  been  held  proper  to  sell  stocks  and  bonds  on  the 

in  payment.    Crice  v.  Illinois  L.  Ins.  *  See   §  56,  Joliet  Iron  &c.  Co.    v. 

Co.,   122  Ky.  572,  92  S.  W.  560,  121  Scioto  Fire  Brick  Co.,  82  111.  548,  25 

Am.  St.  489.  Am.   Rep.  341;   Slevin  v.   Morrow,  4 

"  Fitzgerald  v.  Blocher,  32  Ark.  742,  Ind.   425 ;    Hazard   v.   Wells,  2   Abb. 

29  Am.  Rep.  3.  N.  Cas.    (N.  Y.)   444. 

*Hale  Bailments,  p.  169;  Fitzgerald  ^Zimpleman  v.  Veeder,  98  111.  613; 

V.  Blocher,  72  Ark.  742,  29  Am.  Rep.  Union   Trust   Co.   v.   Rigdon,  93    111. 

3;  Howard  v.  Ames,  3  Mete.  (Mass.)  458;  Wood  v.  Mathews,  1Z  Mo.  477; 

308.  Fairbanks  v.  Sargent,  117  N.  Y.  320, 

^Joliet    Iron    Co.    v.    Scioto    Fire  22  N.  E.  1039,  6  L.  R.  A.  475. 

Brick  Co.,  82   111.   548,  25   Am.   Rep.  « Story  Bailments   (9th  ed),  §  214; 

341 ;  Wheeler  v.  Newbould,  16  N.  Y.  Bowman  v.  Wood,  15  IMass.  534 ;  Ex- 

392.  See  Moses  Exr.  v.  Grainger,  106  eter   Bank  v.   Gordon.  8   N.   H.   66; 

Tenn.  7,  58  S.  W.  1067,  53  L.  R.  A.  Garlick  v.  James,  12  Johns.    (N.  Y.) 

857n,  and   full  note;   also  note  4  L.  146,  7  Am.  Dec.  294.     And  if  all  the 

R.   A.    587.    As   to    recovery   of    full  collateral  is  insufficient  to  satisfy  the 

amount  of  note  by  pledgee,  see  Gold  debt,  the  pledgor  cannot  complain  of 

Glen  &c.  Co.  v.  Dennis  (Colo.  App.),  a  compromise  made  by  the  pledgee. 

121    Pac.    dn,    and    Slack    v.    Elkins  Zollman  v.  Jackson  Trust  &  Savings 
(Ga.  App.),  n  S.  E.  862. 


PLEDGES.  ^y 

stock  exchange  after  the  custom  of  brokers,  rather  than  by  special 
pubHc  sale."  Where  brokers,  upon  the  advancement  of  an  agreed 
amount  by  their  customers,  called  a  margin,  advance  the  re- 
mainder of  the  purchase-price,  they  are  considered  to  hold  the 
stocks  in  pledge  for  the  amount  advanced,  and  they  may  fore- 
close their  liens  according  to  the  customs,  rules  and  usages  of 
brokers  upon  reasonable  notice  to  the  customer,  and  the  allow- 
ance to  him  of  reasonable  time  in  which  to  pay  the  margins  de- 
manded.^'* Custom  has  brought  about  a  certain  departure  from 
the  rules  of  law  recognized  in  other  pledges  in  the  case  of  stocks 
purchased  on  margins. 

§  73.  Pledgor's  rights  in  case  of  default,  or  in  case  of 
pledgee's  wrong. — ^The  pledgor  has  the  right  to  redeem  at 
any  time  after  default  until  sale  by  the  pledgee."  He  has  a  right 
to  a  fair  and  impartial  sale  by  the  latter,  and  may  avoid  a  sale 
which  is  notoriously  unfair,  or  one  where  no  demand  for  pay- 
ment was  made,  or  where  he  had  no  notice  of  its  time  and 
place.^-  The  general  rule  is  that  he  has  no  right  to  compel  a  sale 
of  the  pledge  by  the  pledgee  after  default,  even  if  the  market 
should  be  falling,  for  it  is  said  that  his  rights  are  sufficiently 
guarded  by  the  privilege  of  redeeming,  or  of  selling  his  equity 
of  redemption.^^     He  is  entitled  to  any  surplus  of  the  proceeds 

Bank,  238  111.  290.  87  N.  E.  297,  32  "Van    Zile    Bailments     (2d    ed.), 

L.  R.  A.  (N.  S.)  858n.  §  323;   Milliken  v.  Dehon,  27  N.   Y. 

"Denton   v.   Jackson,    106   III.   433;  364,  revg.  2i  N.  Y.  Super.  Ct.  325. 

Worthington  v.  Tormey,  34  Md.  182;  "^  Hamilton  v.  State  Bank,  22  Iowa 

Gruman  v.  Smith,  81  N.  Y.  25.  306;  Galigher  v.  Jones,  129  U.  S.  193, 

^°See   cases   cited  in  note  9;   Van  9  Sup.   Ct.  335,  12  L.  ed.  658.     See 

Zile  Bailments    (2d   ed.),    §§   320-22;  cases  cited  in  notes  89  and  90.     Vol- 

note  74  Am.    St.   471-4.     But  if   the  untary    and    unconditional    surrender 

broker  sells  the  stock  without  notice  of  the  pledged  property  to  the  pledg- 

to  the  customer  of  the  time  and  place  or  usually   operates    as    a   waiver   or 

of  the  sale,  it  is  a  conversion.     Con-  loss  of  the  pledge.  First  Nat.  Bank  v. 

tent  V.  Banner,  184  N.  Y.  121,  6  Am.  Bradshaw  (Nebr.),  135  N.  W.  830,  39 

&    Eng.    Ann.    Cas.    106;    Gillett    v.  L.  R.  A.   (N.  S.)  887  and  note. 

Whiting,    120   N.   Y.   402,   24   N.    E.  "  This  applies  where  the  pledgee  of 

790;   Baker  v.  Drake,  66  N.  Y.  518,  corporate  stock  allowed  it  to  depre- 

23  Am.  Rep.  80.    A  broker  who  car-  ciate  in  value.    Jones  Pledges,  §  606n ; 

ries    stock  on   a   margin    for   a   cus-  Lake   v.    Little    Rock   Trust    Co.,    17 

tomer  may  pledge  it  for  his  own  pur-  Ark.   53,  90   S.   W.   847.  3  L.   R.   A. 

poses  to  the  extent  of  the  amount  of  (N.  S.)  1199  and  note,  7  Am.  &  Eng. 

his    advances.      Clark    v.    Baillie,    45  Ann.    Cas.   394;    Rozet  v.    AlcClellan. 

Can.  Sup.  Ct.  50,  Ann.  Cas.  1912B.  548  48  111.  345.  95  Am.  Dec.  551 ;  Taggard 

and  note.  v.  Curtenius,  15  Wend.   (N.  Y.)   155, 

but  see  cases  cited  in  note  66,  §  43.' 


68  BAILMENTS. 

of  the  sale  of  the  pledge,  after  the  pledge  debt  is  satisfied.^*  The 
pledgor  may  waive  any  irregularity  in  the  sale  or  other  proceed- 
ings of  the  pledgee/^  If  the  bailee  has  been  guilty  of  a  misuse 
of  the  property,  or  of  some  act  which  would  terminate  the  lien, 
the  pledgor  has  a  right  of  action  for  conversion.^® 

§  74.  Rights  of  purchaser  at  pledgee's  sale. — The  gen- 
eral rule  is  that  a  legal  sale  after  default  by  the  pledgee  divests 
the  title  of  the  pledgor,  and  puts  in  the  purchaser  a  good  and 
valid  title  to  the  property  pledged,  for  the  pledgee  sells  not  only 
his  own  interest,  but  all  the  right  of  the  pledgor,  which  he  could 
have  given  him  power  to  sell  at  the  time  the  pledge  contract  was 
made."  As  we  have  seen,  the  pledgee  before  default  can  assign 
only  his  own  interest,  subject  to  the  rights  of  the  pledgor  under  the 
pledge  contract,  and  the  purchaser  from  the  pledgee  before  the 
pledgor's  default  gets  the  same  right  as  the  pledgee  held.^^  And 
if  the  sale  after  default  was  not  made  in  accordance  with  law,  it 
is  held  that  the  purchaser  takes  the  pledgee's  right,  and  the 
pledgor  may  not  recover  without  paying  to  him  the  debt^* 

"  See  cases  cited  in  note  94.   White  "  Halliday  v.  Stewart  County  Bank, 

River  Sav.  Bank  v.  Capital  Sav.  Bank,  112  Ga.  461;  Rozet  v.  McClellan,  48 

n  Vt.  123    59  Atl.  197,  107  Am.  St.  111.  345,  95  Am.  Dec.  551;  Potter  v. 

754 ;  note  83  Am.  St.  392.  Thompson,  10  R.  I.  1. 

^^  Hill   V.    Finigan,   11   Cal.   267,   19  "  See  cases  cited  under  §  57. 

Pac   494    11  Am.  St.  279.  "Brittan  v.  Oakland  Bank  of  Sav- 

"  See     cases     cited    under     §  58.  ings,  124  Cal.  282,  57  Pac.  84,  71  Am. 

Feige  V.  Burt,  118  Mich.  243,  74  Am.  St.  58;  McNeil  v.  Tenth  Nat.  Bank, 

St.  390.  46  N.  Y.  325,  7  Am.  Rep.  341. 


CHAPTER  IV. 

CONTRACTS  OF  HIRING. 

§75.  Contracts   of   hiring.  §83.  Assignability    of   ba  il  ee's 

76.  Contracts    of    hiring    the    use  rights. 

of  a  thing.  84.  Special  classes  of  hiring  the 

n.  Creation    of    the    relation.  use    of    a    thing— Property 

78.  Bailor's    duties    and    rights—  for  exhibition. 

Warranty  of   title  and  dis-         85.  Special     classes— Storekeeper 
closure   of   defects.  or     bath-house     keeper     as 

79.  Bailee's    right    to    possession  hired  bailee  of  personal  be- 

and  use.  longings      of     customer     or 

80.  Care  demanded  of  hirer— Ex-  patron. 

penses.  86.  Termination   of   the   contract 

81.  Bailee's    misuse   and    conver-  of    hiring— Redelivery    and 

sion.  recompense. 

82.  Third    persons   and   subusers. 

f  .  . 

§75.     Contracts  of  hiring. — In  our  general  classification 

Vf  contracts  of  hiring  as  one  of  the  kinds  of  bailments  for  mutual 
"benefit,  four  subclasses  were  recognized;  namely,  the  hiring  of 
the  use  of  a  thing;  the  hiring  of  services  about  a  thing;  the  hir- 
ing of  the  custody  of  a  thing;  and  the  hiring  of  the  carriage  of 
a  thing.  The  general  principles  of  bailments  apply  fully  to  such 
contracts,  and  the  distinguishing  feature  is  that  the  bailment  is 
for  mutual  benefit,  and  the  bailee  is  held  only  to  ordinary  care  of 
the  article  bailed.  This  statement  must  be  qualified,  however,  as  to 
the  liability  of  common  carriers  and  innkeepers,  whose  bailment  is 
a  bailment  of  hiring,  and  of  mutual  benefit,  and  who  are  yet,  for 
reasons  of  public  policy,  held  to  a  more  than  ordinary  degree  of 
care  for  the  thing  bailed.  Their  obligations  will  be  treated  sepa- 
rately. The  other  contracts  of  hiring  afford  perhaps  the  best 
'  example  of  the  pure  bailment,  and  the  most  of  the  examples  cited 
to  illustrate  the  general  principles  of  the  law  of  bailments  were 
taken  from  contracts  of  hiring.  Bailments  for  hire  as  a  rule 
rest  upon  contract,  but  there  are  a  few  quasi  bailments  for  hire, 
which  arise  by  operation  of  law,  as  where  property  comes  into  the 
possession  of  captors,  revenue  officers,  prize  agents,  officers  of 
courts,  or  salvors,  all  of  whom  are  considered  depositaries  for 

69 


yO  BAILMENTS. 

hire.^  Contracts  of  hiring  are  the  locatio-conductio  bailments 
of  the  civil  law,  and  a  letting  of  a  thing  by  one  party,  and  a  hir- 
ing of  it  by  the  other,  are  elements  present  in  all  bailments  of  this 
class. 

§  76.  Contracts  of  hiring  the  use  of  a  thing. — The  let- 
ting for  a  recompense  of  a  chattel  to  be  used  by  the  hirer  is  the 
locatio  rei  of  the  Roman  law.  Any  chattel  which  will  not  be 
consumed  in  the  use  may  be  hired.  The  compensation  for  the 
hiring  is  made  to  the  bailee,  and,  though  usually  money,  may  be 
goods,  services  or  any  benefit,  and  in  some  cases  the  benefit  is 
very  indirect.  The  legal  presumption  is  that  the  use  of  another's 
chattel  is  for  some  reward  to  be  returned  to  him.^  The  locatio 
rei  bailment  differs  from  the  commodate  only  in  the  element  of 
compensation  to  the  bailee,  who  thus  becomes  a  letter  instead  of 
a  lender,  and  in  regard  to  many  of  the  rights  of  the  parties,  espe- 
cially as  to  conversion  by  the  bailee,  the  rules  are  substantially 
the  same.  Common  instances  of  this  class  of  bailments  are  the 
hiring  of  a  horse  by  a  teamster  or  farmer,  the  hiring  of  a  horse 
and  carriage  from  a  livery  stable,  or  the  hiring  of  a  piece  of  ma- 
chinery. It  is  held  that  one  who  leases  moving-picture  films  for 
use  is  a  bailee  and  bound  to  use  only  ordinary  care  for  their 
preservation.^  Exceptional  instances  of  this  class  of  bailment  are 
the  receiving  of  property  for  exhibition,  which  is  held  to  be  a  bail- 
ment for  hire,  and  the  care  of  the  effects  of  the  customers  of 
clothing  merchants,  as  an  incident  of  a  business  conducted  for 
profit.* 

*  Captors,     Story    Bailments     (9th  ments    (9th   ed.),    §    622;     Schiller, 

ed.),  §  614;  The  Betsey,  1  W.  Rob.  Cargo  Ex.,  2  Prob.  Div-  145;  Schou- 

Adm.  93;  The  Anne,  3  Wheat.    (U.  ler   Bailments    (3d   ed.),   §  94. 

S.)   435,  4  L.  ed.  428;  The  George,  '  Goddard  Bailments,  §  112.  Where 

1   Mason    (U.   S.)    24;    revenue  offi-  one  delivered  a  horse  to  another,  who 

cers,  Burke  v.  Trevitt,  1  Mason   (U.  was  to  break  her  to  work,  and  pay 

S.)  96;  prize  agents.  Story  Bailments  no  compensation  for  her  services,  the 

(9th  ed.),  §  619;   The  Rendsberg,  6  court  held  that  the  bailment  was  one 

C.  Rob.  Adm.  142;  officers  of  courts,  of  hire,  the  bailor's  compensation  for 

Story  Bailments    (9th   ed.),    §§    124-  the  use  of  the  horse  being  the  benefit 

135,  620,  621;  Burke  v.  Kimball,  106  of  having  the  horse  broken,  and  the 

Mass.     115;     Trotter    v.    White,    26  bailee    receiving    the    benefit    of    the 

Miss.  88;  Cross  v.  Brown,  41  N.  H.  use  of  the  horse.    Francis  v.  Shrader, 

283;   Browning   v.    Hanford,    5    Hill  67  111.  272. 

(N.  Y.)  588,  40  Am.  Dec.  369;  Burke  'Miller  v.  Miloslowsky  (Iowa),  133 

V.  Trevitt,  1  Mason  (U.  S.)  96,  Fed.  N.  W.  357. 

Cas.   No.  2163;   salvors.   Story   Bail-  *See  §§  84,  85,   infra. 


CONTRACTS    OF    HIRING.  7I 

§  77.  Creation  of  the  relation. — This  relation  is  one  of 
contract,  arising  from  an  express  or  implied  contract,  and  of 
course  the  general  rules  of  contracts  apply  as  to  the  sufficiency  of 
the  consideration,  the  capacity  of  the  parties,  and  the  avoidance 
of  a  contract  entered  into  through  fraud  or  duress.  Since  the 
contract  is  of  mutual  benefit,  either  party  may  compel  the  other 
to  perform  his  part,  or  respond  in  damages.  The  contract  is 
merely  executory  until  delivery  by  the  bailor  to  the  bailee  and 
acceptance  by  the  latter,  when  the  bailment  relationship  com- 
mences.^ Ordinarily,  the  rights  of  the  parties  are  determined  by 
the  contract  entered  into,  for  any  express  contract,  not  contrary 
to  public  policy  or  law,  will  be  enforced,  and  the  parties  may 
agree  to  any  limitations  within  these  restrictions  as  to  the  time, 
place  and  manner  of  the  use  of  the  chattel,  and  the  bailee  may 
contract  to  insure  its  safe  return.^ 

§  78.  Bailor's  duties  and  rights — Warranty  of  title,  and 
disclosure  of  defects. — The  bailor  is  a  warrantor  that  he  has 
such  a  possessory  right  to  the  chattel  let  as  to  enable  the  bailee 
to  carry  out  the  purposes  of  the  bailment.''  Within  this  qualifica- 
tion it  is  not  necessary  that  he  should  be  the  owner  or  have  abso- 
lute title,  but  if  the  bailee  is  prevented  from  carrying  out  the  pur- 
poses of  the  contract,  and  is  deprived  of  the  contemplated  use  of 
the  thing  because  of  the  intervention  of  a  title  superior  to  the 
bailor's,  he  may  bring  an  action  for  the  loss  caused  by  such  fail- 
ure of  title.®  The  bailor  warrants  that,  so  far  as  he  knows,  or  in 
the  exercise  of  ordinary  care  could  know,  the  chattel  is  fit  for  the 
purpose  of  the  bailment,  and  that  its  use  for  such  purposes  will 
not  be  dangerous,  if  ordinary  care  is  exercised.  He  must  notify 
the  bailee  of  defects  in  the  article  bailed,  but  is  not  liable  for  in- 

'Van    Zile   Bailments    (2d   ed.),    §  by  his  failure  to  perform  his  part  of 

120.     In  an  interesting  case  recently  the     contract.       Browning     v.     Fies 

decided,   it  was  held  that   the  livery  (Ala.),  58  So.  931. 

stable  keeper  who  contracted  to  fur-  'See  Hale  Bailments  (1896),  §  41, 

nish  a  carriage  and  team  to  carry  a  p.  185. 

wedding  party  from  the  bridegroom's  ^  Schouler  Bailments  (3d  ed.),  § 
residence  to  the  church,  and  who  151;  Story  Bailments  (9th  ed.),  §§ 
failed  to  appear  at  the  time,  was  383.  387;  Van  Zile  Bailments  (2d  ed.), 
liable  in  breach  of  contract  for  the  §  121;  Hale  Bailments,  p.  199;  God- 
annoyance,  inconvenience,  mental  dard  Bailments,  §  113. 
harassment   and   mental   pain   caused  'See  citations  in  note  7. 


72  BAILMENTS. 

juries  caused  by  defects  of  which  he  did  not  know,  and  could  not 
know  in  the  exercise  of  reasonable  diligence,®  and  is  only  liable 
for  negligence.  So  if  the  defect  is  latent,  and  could  not  have 
been  discovered  by  careful  examination,  the  bailor  cannot  be 
held,^*^  and  if  the  bailee  had  actual  notice  of  the  defect,  the  bailor 
is  not  liable  for  his  injuries  obtained  after  such  notice."  The 
degree  of  diligence  to  be  exercised  depends  upon  the  circum- 
stances, and  where  the  use  contemplated  might  endanger  the 
safety  or  life  of  others,  the  letter  is  held  to  a  high  degree  of  dili- 
gence, and  the  most  watchful  care,  as  in  the  case  of  livery  stable 
keepers,  who  make  a  business  of  letting  horses  and  carriages. 
So,  "a  liveryman  is  bound  to  exercise  the  care  of  a  reasonably 
prudent  man  to  furnish  a  horse  or  carriage  that  is  lit  and  suitable 
for  the  purpose  contemplated  in  the  hiring,"^^  and  if  a  liveryman 
lets  a  horse  which  he  knows,  or  in  the  exercise  of  reasonable  care 
could  have  known,  to  be  dangerous  and  unsuitable  for  the  service 
for  which  it  is  required,  he  is  liable  for  injuries  caused  by  its 
vicious  propensities.^^ 

§  79.     Bailee's   right   to   possession   and   use. — As    in    all 

bailments,  the  bailee  has  the  right  of  possession  pending  the  ac- 
complishment of  the  bailment  purpose.  Since  in  this  case  that 
purpose  is  the  use  of  the  chattel  bailed,  the  bailee  has  the  right 
to  the  exclusive  use  and  control  of  the  thing  for  the  purpose  for 
which  it  was  hired,  as  against  all  the  world,  including  the  letter,^* 

•Higman  v.  Camody,  112  Ala.  267,  154,  7Z  Atl.  324.  25  L.  R.  A.  (N.  S.) 

20  So.  480,  57  Am.  St.  ZZ;  Leach  v.  372,  132  Am.  St.  770.    See  Pavne  v. 

French,  69  Maine  389,  31   Am.   Rep.  Halstead.  44  111.  App.  97;   Nisbet  v. 

296;  Moriarty  v.  Porter,  22  Misc.  (N.  Wells,  25  Kv.  L.  511,  76  S.  W.  120; 

Y.)   536,  49  N.  Y.  S.  1107;  Harring-  Lvnch  v.  Richardson,  163  Mass.  160, 

ton  V.  Snyder,  3  Barb.   (N.  Y.)  380;  39  N.  E.  801,  47  Am.  St.  444;  Cope- 

Kissam  v.  Jones,  56  Hun  (N.  Y.)  432,  land  v.  Draper,  157  IMass.  558,  32  N. 

31  N.  Y.  St.  198,  10  N.  Y.  S.  94.  See  E.  944,  19  L.  R.  A.  283,  34  Am.  St. 

cases    cited    in   notes    10,    11,    12,    13.  314;    McGregor    v.    Gill,    114    Tenn. 

Baker    &    Lockwood    Mfg.    Co.    v.  521,  86  S.  W.  318,  108  Am.  St.  919; 

Clavton,   40  Tex.    Civ.   App.   586,  90  Huntoon   v.    Trumbull,    12   Fed.  844, 

S.  W.  519.            _  2  McCrary  (U.  S.)  314. 

^"Van   Zile   Bailments    (2d   ed),   §  "See  cases  cited  in  note  12. 

123;    Home    v.    Meakin,    115    Mass.  "  Story  Bailments  (9th  ed.),  §  395; 

326;  Hadley  v.  Cross,  34  Vt.  586,  80  Van  Zile  Bailments   (2d  ed.),  §  122; 

Am.  Dec.  699.  Goddard   Bailments,    §    115;    McCon- 

"  Cutter  V.  Hamlen,  147  Mass.  471,  nell    v.    Maxwell,    3    Blackf.     (Ind.) 

18  N.  E.  397,  1  L.  R.  A.  429;  God-  419.   26   Am.    Dec.    428;    Banfield   v. 

dard  Bailments,  §  113.  Whipple,    10    Allen    (Mass.)    27,    87 

"Conn    V.     Hunsberger,    224     Pa.  Am.    Dec.   618;    Woodman   v.    Hub- 


CONTRACTS    OF    HIRING.  "/T) 

or  an  attaching  creditor  of  the  letter/^  and  this  right  is  not  lost 
by  redeHvery  to  the  owner  for  a  temporary  purpose/^  The 
bailee's  right  to  use  extends  only  to  the  purpose  for  which  it  was 
hired,  and  not  to  any  other.  The  extent  of  his  right  is  conse- 
quently mainly  dependent  upon  the  agreement  between  the  par- 
ties, and  he  is  held  to  good  faith  in  carrying  out  this  agreement. 

§  80.  Care  demanded  of  hirer — Expenses. — The  bailee  is 
held  to  ordinary  diligence  in  the  care  of  the  chattel,  and  lack  of 
such  diligence  will  be  negligence  for  which  he  is  liable/'  What  is 
ordinary  diligence  depends  of  course  upon  the  character  of  the 
thing  and  the  circumstances.  The  majority  of  the  cases  brought 
upon  contracts  for  the  hiring  of  the  use  of  a  thing  are  those  in 
which  a  horse  has  been  hired,  and  this  subject  affords  the  best 
illustration  of  the  care  to  which  the  bailee  is  held.  It  was  said 
by  Mr.  Schouler,^^  "Unless  the  bailee  took  the  animal  for  too 
short  a  time,  or  under  a  special  arrangement  whereby  the  bailor 
was  to  look  after  his  own  property,  he  ought  to  provide  the  crea- 
ture regularly  with  proper  food  and  drink,^^  afford  due  shelter 
and  repose,  and,  in  general,  take  reasonable  heed  that  the  animal, 
while  resting,  is  so  fastened  up  that  it  may  not  readily  nm  away 
or  be  stolen.^**  While  putting  the  horse  to  active  use  he  should 
not  harness  carelessly,  overload,^^  overdrive,"'  be  heedless  of 

bard,  25  N.  H.  67,  57  Am.  Dec.  310;  Nat.  Bank,  119  N.  Y.  263,  23  N.  E. 

Beach  v.  Raritan  &c.   R.   Co.,  Z7  N.  875;  Collins  v.  Bennett,  46  N.  Y.  490; 

Y.    457;    Cobb    v.    Wallace,    5    Cold.  Millon  v.  Salisbury,  13  Johns.  (N.  Y.) 

(Tenn.)     539,     98     Am.     Dec.     435;  211 ;  Clark  v.  United  States,  95  U.  S. 

Hickok  V.  Buck,  22  Vt.  149.  539,  24  L.  ed.  518,  13  Ct.  CI.  (U.  S.) 

''Hartford   v.    Jackson,    11    N.    H.  519;  Gleason  v.  Beers'  Estate,  59  Vt. 

145;   Smith  v.   Niles,  20  Vt.  315,  49  581,    10   Atl.   86,   59   Am.    Rep.   757; 

Am.  Dec.  782.  Baker  &  Lockwood  Mfg.  Co.  v.  Clav- 

"  Roberts  v.  Wyatt,  2  Taunt.  268.  ton,  46   Tex.   Civ.  App.   384,   103   S. 

"Story    Bailments     (9th    ed.),    §§  W.  197. 

398,    399;    Schouler    Bailments    (3d  "  Schouler      Bailments      Including 

ed.),  §  134;  Higman  v.  Camody,  112  Carriers  (1905),  §  112. 

Ala.  267,  20  So.  480,  57  Am.  St.  ZZ;  "  Handford  v.  Palmer,  2  Brod.  & 

Bradley    v.    Cunningham,    61     Conn.  Bing.    359;    Eastman    v.    Sanborn,    3 

485,   23   Atl.  932,    15   L.   R.   A.   679;  Allen   (Mass.)  594.  81  Am.  Dec.  677. 

Evans  v.  Nail,  1  Ga.  App.  42,  57  S.  -"Jackson  v.  Robinson,  18  B.  Mon. 

E.  1020;  Union  Stock  Yards  &  Tran-  (Ky.)   1. 

sit   Co.   V.   Mallory  &c.   Co.,   157   111.  "'  Harrington    v.    Snvder,    3    Barb. 
554,  41  N.  E.  888;  Duffy  v.  Howard,  (N.  Y.)   380;   McNeill  v.   Brooks,   1 
77    Ind.    182;    Chamberlin    v.    Cobb,  Yerg.   (Term.)   77:i. 
32  Iowa  161;  Taussig  v.  Schields,  26  ^Overdriving  and  overheating,  Ed- 
Mo.  App.  318;  Ouderkirk  v.  Central  wards    v.    Carr,    13    Gray    (Mass.) 


74  BAILMENTS. 

what  he  perceives  to  be  the  creature's  frailties,  nor  fail  to  supply, 
prudently,  wants  essential  to  its  health  and  good  condition.  If 
disease  or  bruise  be  discovered  during  the  bailee's  term,  he  should 
be  discreet  in  its  treatment,  and  in  extremity  call  in  some  farrier 
or  expert;^'  or  else,  informing  his  bailor  promptly,  throw  the 
responsibility,  as  he  may  generally  do,  upon  the  owner.  He 
should  not  take  dangerous  risks  of  travel.^*  During  his  whole 
term  of  use  the  bailee  ought  to  act  honorably,  humanely,  and 
with  such  reasonable  regard  for  preserving  the  animal's  value 
unimpaired  as  from  prudent  men  might  be  expected."  So  when 
the  bailee  has  fairly  followed  the  terms  of  his  engagement,  and 
has  used  proper  diligence,  the  bailor  must  bear  all  loss  occasioned 
to  the  animal  in  the  course  of  its  use.^^  And  if  he  is  ordinarily 
prudent  and  careful,  the  bailee  is  not  liable  for  injuries  caused  by 
the  horse's  nervous  or  vicious  nature.**^  If  the  letter  knows  that 
the  hirer  is  physically  or  mentally  incapable  of  giving  proper 
care,  as  a  young  child,  or  an  imbecile  or  cripple,  he  cannot  hold 
him  to  the  same  degree  of  care  as  a  normal  person."  But  since 
in  this  class  of  cases,  personal  use  by  the  hirer  is  not  ahvays  con- 
templated, it  is  held  that  the  bailor  may  rely  upon  the  bailee's 
pecuniary  responsibility  to  make  good  any  injury  which  might 
occur. ^*  A  hirer  who  knows  that  the  thing  hired  is  liable  to  de- 
terioration or  injury  must  exercise  commensurate  diligence." 
Inevitable  accident  or  superior  force  excuses  the  bailee  from  lia-j 
bility  for  loss,^**  or  natural  deterioration  or  wear  and  tear  incident 

234;  Buis  v.  Cook,  60  Mo.  391 ;  Went-  P.  R.  Co.,  45  Minn.  85,  47  N.  W.  459; 

worth   V.    McDuffie,   48    N.    H.    302;  Stacy   v.   Knickerbocker   Ice   Co.,   84 

Rowland   v.   Jones,   73   N.    Car.   52 ;  Wis.  614,  54  N.  W.  1091. 

Ray   V.   Tubbs,   50  Vt.   688,  28  Am.  "  Schouler     Bailments     (3d     ed.). 

Rep.  519.  §  138. 

''Story  Bailments  (9th  ed.),  §  405;  '*  Schouler     Bailments      (3d     ed.), 

Bray  v.  Mayne,  1  Cow.  1 ;  Deane  v.  §    138 ;    Mooers    v.    Larry,    15    Gray 

Keate,  3  Camp.  4;  Vaughan  v.  Web-  (Mass.)  451. 

ster,  5  Harr.   (Del.)  256;  Thompson  '"  Beale  v.  South  Devon  R.  Co.,  12 

V.    Harlow,    31    Ga.    348;    Graves   v.  W.  R.  1115;  Wilson  v.  Brett,  11  M. 

Moses,  13  Minn.  335.  &  W.  113. 

'*  Such  as  trying  to  ford  a  swollen  '"  Watkins  v.  Roberts,  28  Ind.  167 ; 

stream.     United    Tel.    Co.    v.    Cleve-  Field  v.  Brackett,  56  Maine  121 ;  Mc- 

land,  44  Kans.  167.  Evers  v.  The  Sangamon,  22  Mo.  187 ; 

-'Francis   v.   Shrader,   67   111.  272;  Hyland   v.    Paul,   33   Barb.    (N.   Y.) 

Buis  v.  Cook,  60  Mo.  391;   Harring-  241;     Reeves    v.     The     Constitution, 

ton  v.  Snyder,  3  Barb.   (N.  Y.)  380;  Gilp.  (U.  S.)  579,  Fed  Cas.  11659. 
Carrier  v.  Dorrance,  19  S.  Car.  30. 

^Armstrong  v.  Chicago,  M.  &  St. 


CONTRACTS    OF    HIRING.  75 

to  the  use  of  the  thing,^^  the  sickness  and  death,  or  the  escape,  of 
a  hired  animal,^-  or  loss  by  robbery  or  theft,^^  unless  the  bailee's 
negligence  has  exposed  the  property  to  injury,  or  contributed 
thereto.^* 

It  seems  that  the  proper  rule  in  regard  to  expenses  is  that  the 
bailee  is  liable  for  the  ordinary  and  incidental  expenses  of  caring 
for  the  property,^°  such  as  providing  suitable  food  for  horses,^*^ 
and  that  the  bailor  is  liable  for  unforeseen  extraordinary  expense 
incurred  in  preserving  the  property  from  loss  from  unexpected 
causes  for  which  the  hirer  was  not  at  fault,  or  which  permanently 
enhance  its  value."  Under  the  civil  law  the  letter  must  put  the 
chattel  in  proper  condition  for  use,  and  keep  it  so,  but  the  text- 
writers  do  not  consider  this  the  rule  at  common  law.^* 

§  81.  Bailee's  misuse  and  conversion. — If  the  bailee  in 
any  way  uses  the  property  for  any  other  purpose  than  that  per- 
mitted by  the  contract  of  bailment,  he  is,  of  course,  liable  in 
breach  of  contract  for  any  damages  thus  caused.  But  the  early 
cases  hold  that  any  intentional  deviation  in  use  from  the  agreed 
purpose  is  a  conversion,  and  that  the  bailee  thenceforward  be- 
comes absolutely  liable  for  any  loss  or  injury  to  the  property. 
This  rule  has  been  frequently  applied  in  cases  where  a  horse  was 
killed  or  injured  when  driven  or  ridden  to  a  place  not  provided 
for  in  the  contract  of  hire,^^  and  the  bailee  held  liable  for  con- 

"^  Francis   v.    Shrader,  67  111.  272 ;  Mo.  391 ;  Wentworth  v.  McDuffie,  48 

Buis  V.  Cook,  60  Mo.  391 ;  Millon  v.  N.  H.  402.    The  bailef  of  a  horse  and 

Salisbury,    13    Johns    (N.    Y.)    211;  wagon  for  hire  is  liable  for  the  value 

Harrington   v.    Snyder,   3   Barb.    (N.  if  they  were  stolen  and  he  did  not  use 

Y.)  380;  Reeves  v.  The  Constitution,  reasonable  care  to  keep  watch  over 

Gilp.    (U.    S.)    579,    Fed.    Cas.    No.  the  property.     Kleiner  v.  Cohn,   132 

11659.  N.  Y.  S.  779. 

'-Watkins  v.  Roberts,  28  Ind.  167.  ^''Schouler    Bailments    (3d   ed.),    § 

But  the  hirer  of  a  horse  which  dies  152;  Hale  Bailments,  p.  201. 

from   a   disease   contracted   while  at  ^Handford  v.   Palmer,  2  Brod.  & 

the  work  for  which  it  was  hired  and  Bing.  359,  5  Moore  74. 

while  under  his  exclusive  protection  ^' Schouler    Bailments    (3d    ed.),    § 

has  ihe  burden  of  proving  that  such  152;    Story    Bailments    (9th    ed.),    § 

death   was  not  caused   by  his  negli-  392;  Reading  v.   Menham,   1   Moo.  & 

gence.     Selesky  v.  Vollmer,  107  App.  Rob.  234 ;  Leach  v.  French,  69  Maine 

Div.  (N.  Y.)  300,  95  N.  Y.  S.  130.  389,  31  Am.  Rep.  296;  Harrington  v. 

'"Story  Bailments  (9th  ed.),  §  412;  Snyder,  3  Barb.   (N.  Y.)  380;  Jones 

Campbell  v.  Klein,  101  N.  Y.  S.  577.  v.  Morgan,  90  N.  Y.  4,  43  Am.  Rep. 

'"Schouler    Bailments    (3d    ed.).  §  131. 

134;    Eastman   v.    Sanborn,    3    Allen  '*  Schouler   Bailments    (3d   ed.),   § 

(Mass.)    594;    Edwards    v.    Carr,    13  152;   Hale  Bailments,  p.  201. 

Gray  (Mass.)  234;  Buis  v.  Cook,  60  *"Malone  v.  Robinson,  77  Ga.  719; 


76  BAILMENTS. 

version  if  he  rides  or  drives  a  horse  beyond  the  agreed  place,  or 
farther  than  the  agreed  distance/**  or  keeps  him  longer  than  the 
agreed  time/^  or  hires  him  for  one  purpose  or  to  do  one  kind  of 
work,  and  uses  him  to  do  another  kind  of  work/-  The  tendency 
of  the  later  cases  and  text-writers  has  been  to  relax  the  rule  some- 
what, Judge  Story  suggesting  that  the  bailee  should  not  be  held 
liable  for  conversion  if  the  violation  of  duty  or  of  contract  did 
not  conduce  to  the  loss,  and  following  this  line,  it  has  been  held 
that  merely  taking  slaves  to  work  in  another  county  from  that 
specified  is  not  ipso  facto  a  conversion  where  the  loss  was  not 
occasioned  by  such  act,  and  there  was  no  intention  to  do  any- 
thing inconsistent  with  the  owner's  right,"*^  and  that  merely  driv- 
ing a  team  beyond  the  agreed  place,  without  more,  is  not  a  con- 
version/* Other  cases  have  held  that  where  the  injury  was  not 
received  while  the  horse  was  being  used  without  the  limits  of 
the  hiring,  and  was  not  caused  by  such  use,  there  is  no  conver- 
sion/^ 

The  true  test  of  a  conversion  is  "in  an  illegal  control  of 
the  thing  converted,  inconsistent  with  the  plaintiff's  right  of 
property."*®  And  as  Mr.  Schouler  says,  "The  leaven  of  com- 
mon sense,  which  keeps  our  law  in  constant  ferment,  is  here  at 

Homer  v.  Thwing,  3   Pick.    (Mass.)  45  Mo.  App.  332;  DeVoin  v.  Mich- 

492;  Hall  v.  Corcoran,  107  Mass.  251,  igan  Lumber  Co.,  64  Wis.  616,  25  N. 

9  Am.  Rep.  30;  Martin  v.  Cuthbert-  W.  552,  54  Am.  Rep.  649.    One  who 

son,   64    N.    Car.   328;    Broussard   v.  hires  horses  to  draw  castings  along  a 

Sells-Floto     Show     Co.     (Tex.     Civ.  public  road  does  not  convert  a  team 

App.),   128   S.  W.  439.     See   Palmer  by  unhitching  it  from  the  wagon  in 

V.    Mayo,  80  Conn.  353,  68  Atl.  369,  which  it  is  working,  and  hitching  it 

125  Am.  St.  123,  15  L.  R.  A.  (N.  S.)  to  one  of  his  own   which  is   stalled 

428,  12  Am.  &  Eng.  Ann.  Cas.  691.  on   the   road,   to  assist   in  getting   it 

*"  Welch  V.  Mohr,  93  Cal.  371;  Mur-  out.     Weller  v.   Camp,   169  Ala.  275, 

phy  V.   Kaufman,  20   La.   Ann.   559;  52    So.    929,    28   L.    R.    A.    (N.    S.) 

Morton    v.    Gloster,    46    Maine    520;  1106n. 

Perham    v.    Coney.    117    Mass.    102;  **  Harvey  v.  Epes,  12  Grat.    (Va.) 

Fisher  v.   Kyle,  27   Mich.   454;   Dis-  153. 

brow  V.   Tenbroeck,   4   E.   D,    Smith  "Doolittle  v.   Shaw,  92   Iowa  348, 

(N.  Y.)   397.     See  Carney  v.  Rease,  60  N.  W.  621,  26  L.   R.  A.  366  and 

60  W.  Va.  €l(i,  55  S.  E.  729.  note,    54    Am.    St.    562;    Carney    v. 

*^  Stewart   v.    Davis,   31    Ark.   518;  Rease,  60  W.  Va.  Q6,  55  S.  E.  729. 

Whalen    v.    New    York    &c.    Electric  '^Farkas  v.  Powell,  86  Ga.  800,  13 

Co.,   63   App.   Div.    (N.   Y.)   615,   71  S.  E.  200,  12  L.  R.  A.  397;  Rankin 

N.  Y.  S.  593;  Martin  v.  Cuthbertson,  v.  Shephardson,  89  111.  445;  Lovejoy 

64  N.  Car.  328.  v.   Jones,  30  N.  H.   164;  Johnson  v. 

*==  Cartlidge  v.  Sloan,   124  Ala.  596,  Miller,  16  Ohio  431. 

26  So.  918;  Ledbetter  v.  Thomas,  130  *^  Woodman  v.  Hubbard,  25  N.  H. 

Ala.  299,  30  So.  342;  Fox  v.  Young,  61. 
22   Mo.   App.   386;   Kellar  v.   Garth, 


CONTRACTS   OF    HIRING,  ^^ 

work,  recalling  the  injustice  of  visiting  blameworthy  and  blame- 
less deviation  with  the  same  penalties  of  absolute  or  insurance 
accountability.  One  hires  a  horse  for  a  given  journey,  but  unex^ 
pectedly  encounters  a  friend,  and  turns  off  to  visit  him,  using, 
all  the  while,  a  prudent  care  of  the  animal ;  or  he  finds  obstruc- 
tions in  the  road,  and  changes  the  point  of  destination  to  another 
which  must  have  equally  suited  his  bailor,  or  he  misses  his  way. 
Such  instances  are  matters  of  every-day  occurrence.  And  how 
few  who  hire  a  carriage  and  drive  carefully  believe  themselves 
tied  down  to  a  literal  performance,  irrespective  of  all  emergencies 
which  may  possibly  occur  too  far  off  for  consulting  the  bailor. 
How  few  imagine  that,  for  a  little  longer  or  a  little  different 
ride,  they  incur  an  extra  risk,  beyond  that  of  paying,  possibly, 
an  extra  hire,  h:  *  ♦  [^  serviceable  defense]  lies  in  a  just 
and  reasonable  interpretation  of  the  bailment  undertaking  itself, 
which,  if  pursued  with  ordinary  prudence,  under  all  the  circum- 
stances, ought  not  to  be  too  literally  construed  against  a  bailee 
who  may  have  found  himself  in  some  unforeseen  emergency, 
and,  while  far  from  the  bailor,  obliged  to  act  upon  his  own  judg- 
ment. For  one  who  hires  may  be  presumed  to  have  much  lati- 
tude, as  to  time  and  methods  of  enjoyment ;  and  local  usage  and 
the  good  sense  of  the  contract  should  interpret  favorably,  where 
restrictive  use  was  not  clearly  specified.  If  hiring  be  general, 
any  prudent  use  of  the  thing  is  permissible;  and  even  if  it  be 
particular,  terms  not  fairly  meant  for  exclusion  need  not  warp 
the  hirer's  discretion,  if  he  is  prepared  to  pay  a  reasonable  com- 
pensation according  to  his  use ;  and  more  especially  so  where  an 
exigency  happens  which  calls  for  the  exercise  of  a  discretion  on 
his  part  without  consulting  the  bailor."*'  The  foundation  of 
the  liability  in  cases  where  the  bailee  is  held  guilty  of  a  con- 
version is  rather  in  tort  than  in  contract,  therefore  it  is  no  defense 
to  the  bailee  that  the  contract  of  hiring  is  void  because  made  on 
Sunday,*^  or  voidable  because  the  bailee  is  an  infant. ^^    The  de- 

*^Schouler     Bailments      (3d     ed.),  "Homer     v.      Thwing,      3      Pick. 

§§  140-141;  Weller  v.  Camp,  169  Ala.  (Mass.)  492;  Freeman  v.  Boland,  14 

275,  52  So.  929,  28  L.  R.  A.  (N.  S.)  R.   I.  39,  51   Am.   Rep.  340;   Towne 

1106n.  V.  Wiley,  23  Vt.  355,  56  Am.  Dec.  85; 

^'See    Frost    v.    Plumb,    40    Conn.  Ray   v.   Tubbs,   50   Vt.   688,   28   Am. 

Ill,   16  Am.   Rep.   18;   Hall  v.   Cor-  Rep.  519. 
coran.  107  Mass.  251,  9  Am.  Rep.  30. 


78 


BAILMENTS. 


struction  o£  personal  property  under  hire  by  the  bailee  amounts 
to  a  conversion/" 

§  82.  Third  persons  and  subusers. — The  bailee,  since  he 
holds  a  special  property  in  the  thing  hired,  may  bring  an  action 
against  any  person  who  injures  it  or  interferes  tortiously  with 
his  possession,  during  the  time  his  right  exists.^^  The  bailor, 
having  the  general  property,  is  not  bound  to  look  to  the  bailee 
alone,  but  has  the  same  right  as  the  bailee  to  bring  an  action 
against  a  third  party,^^  with  the  exception  that  if  the  hiring  is 
for  a  term  specified,  the  letter  may  not  bring  trover  or  replevin 
until  the  expiration  of  the  term,^*  but  may  sue  for  an  injury  to 
the  reversion.^*  The  negligence  of  a  bailee  for  hire  is  not  im- 
putable to  the  bailor  in  an  action  by  the  bailor  against  a  third 
person  for  an  injury  to  the  property,  and  he  may  recover  from  a 
third  person  whose  negligent  or  wrongful  act  caused  the  destruc- 
tion or  injury  of  the  bailment,  even  though  the  bailee's  negligence 
was  contributory  to  the  loss.^^  In  this  latter  instance,  the  bailor 
may  have  a  right  of  action  when  the  bailee  would  have  none. 
The  converse  of  this  proposition  is  true,  that  the  bailor  is  not 
liable  to  third  persons  for  the  negligence  of  the  bailee,  his  serv- 
ants or  agents.^®    The  bailee  is  liable  to  the  bailor  not  only  for 

"•Kiskadden   v.   United    States,   44  Conn.  383,  71  Atl.  356;  Sea  Ins.  Co 

Ct.  CI.  (U.  S.)  205.  V.    Vicksburg   &c.    R.    Co.,    159   Fed 

''^  Croft  V.  Alison,  4  Barn.  &  Aid.  676,  86  C.  C  A.  544,  17  L.  R.  A.  (N 

590;  McGill  v.  Monette,  Z7  Ala.  49;  S.)  925;  Welty  v.  Indianapolis  &  V 

Ludden    v.    Leavitt.   9    Mass.    104,   6  R.    Co.,    105    Ind.   55.   4   N.    E.   410 

Am.  Dec.  45;  Rindge  v.  Inhabitants  Kellar  v.   Shippee,  45  111.   App.  2,77 

of  Coleraine,   11   Gray    (Mass.)    157;  Illinois  Cent.  R.  Co.  v.  Sims,  77  ?^Iiss 

Bliss   V.    Schaub,   48   Barb.    (N.   Y.)  325,  27  So.  527,  49  L.  R.  A.  322;  New 

339;    Hopper   v.    INIiller,    76   N.    Car.  Jersey  Electric  R.  Co.  v.  New  York 

402.  L.  E.  &  W.  R.  Co..  61  N.  J.  L.  287, 

^'Gordon   v.   Harper,   7    T.    R.   9;  41  Atl.  1116,  43  L.  R.  A.  849;  Puter- 

Pain  V.   Whittaker,   Ryan   &  M.  99;  baugh    v.    Reason    9    Ohio    St.    484; 

New  York,  L.  E.  &  W.  R.  Co.  v.  New  Gibson  v.   Bessemer  &c.   R-^Co.,  226 

Jersey   Electric  R.    Co.,  60   N.  J.   L.  Pa.   St.    198,   75   Atl.   194,    18  Am.  & 

338,   38   Atl.   828,    affd.   61    N.   J.   L.  Eng.  Ann.  Cas.  535. 

287,  41  Atl.  1116,  43  L.  R.  A.  849.  =' Claypool    v.    McAlhster,    20    111. 

"Clarke  v.  Poozer,  2  McMul.    (S.  504;  Sproul  v.  Hemmmgway,  i4  Pick. 

Car.)  434;  Swift  v.  Moseley,  10  Vt.  (Mass.)   1,  25  Am.  Dec.  3D0n;  Hofer 

208,  Z3  Am.  Dec.  197.  v.  Hodge,  52  U\ch.  372,  18  N.  W.  112, 

"Schouler    Bailments    (3d    ed.),    §  50   Am.   Rep.   256;    Carter   v.    Berlin 

154;  Howard  v.  Farr,  18  N.  H.  457;  Mills  Co.,  58  N.  H.  52,  42  hm    Rep. 

White  V.  Griffin,  4  Jones    (N.   Car.)  574;  Schular  v.  Hudson  River  R.  Cc 

139.  38  Barb.  (N.  Y.)  653. 

^  Currie  v.  Consolidated  R.  Co.,  81 


CONTRACTS    OF    HIRING.  79 

his  own  negligence  or  default,  but  for  the  default  or  negligence 
of  his  servants  or  children  in  regard  to  the  thing  hired.°^  The 
reason  is  that  there  is  no  privity  between  the  bailor  and  those  to 
whom  the  bailee  peiTnits  the  enjoyment  of  the  property,  therefore 
the  bailor  must  look  to  the  bailee.  The  rule  was  applied  where 
a  servant  of  the  hirer  rode  a  horse  to  death,  or  left  a  stable  door 
open  and  allowed  it  to  escape,^*  where  the  servants,  guests,  chil- 
dren and  boarders  of  the  hirer  defaced  the  furniture  in  ready-fur- 
nished lodgings,^ ^  or  is  applicable  generally  in  any  instance  where 
subagents  employed  by  the  hirer  negligently  injure  the  property.®" 
The  liability  rests,  however,  rather  on  the  principle  of  agency  than 
that  of  master  and  servant.  It  seems  that  the  better  rule  is  that 
the  master  is  liable,  not  merely  for  the  acts  of  the  servant  within 
the  scope  of  his  authority,  but  also  for  those  which  are  within 
the  course  of  his  employment,  even  though  the  particular  act  may 
be  unauthorized.^^  But  where  one  let  a  brougham  and  a  coach- 
man to  drive  it,  the  owner  of  the  brougham  was  not  liable  for  a 
theft  of  the  traveler's  goods,  which  were  silversmith's  samples, 
committed  by  the  coachman,  for  such  an  act  was  without  the 
course  of  his  employment.®^  The  bailee's  liability  rests  upon  the 
ground  that  he  acts  through  instrumentalities  when  he  acts 
through  servants,  guests,  children  or  subagents,  and  that  one  who 
sets  in  motion  an  instrumentality  animate  or  inanimate,  rational 
or  irrational,  which  injures  another  is  liable.®^  Necessarily,  the 
bailee  is  liable  to  third  persons  under  the  ordinary  rules  apply- 
ing to  agents  and  servants,  and  the  bailor  who  sends  a  servant 

"Story  Bailments  (9th  ed.),  §  401;  Nev.   &   P.   239,  8  Adol.  &   E.   109; 

2  Kent   Comm.    (4th  ed.),  586,  587;  Bush  v.  Steinman,  1  Bos.  &  P.  409; 

Hale     Bailments,     p.     204     et     seq. ;  Hilliard      v.      Richardson,      3     Gray 

Schouler  Bailments  (3d  ed.),  §§  145,  (Mass.)   349,  63  Am.  Dec.  743;  Hall 

146.  V.   Warner,   60   Barb.    (N.    Y.)    198; 

'*  Jones    Bailments,    89;    1    Black.  Mims  v.  Mitchell,  1  Tex.  443. 

Comm.  430,  431;    Coggs  v.   Bernard,  "^  Note,   Jag.   Torts.  239-280;   Hale 

2    Ld.    Raym.    909;    Salem    Bank    v.  Bailments,    p.    207;    JMallach   v.    Rid- 

Gloucester  Bank,  17  Mass.  1,  9  Am.  ley,  47  Hun  (N.  Y.)  638,  24  Abb.  N. 

Dec.  111.  Cas.    (N.  Y.)    172,  181,  15  N.  Y.  St. 

''  Jones  Bailments,  89 ;   Story  Bail-  4,  9  N.  Y.  S.  922. 

ments     (9th    ed.),    §    400;    Schouler  «- Cheshire  v.   Bailey    (1905\    1    K. 

Bailments  (3d  ed.),  §§  145,  146;  Smith  B.  237,  1  Am.  &  Eng.  Ann.  Cas.  94 

V.  Bouker,  49  Fed.  954,  1  C.  C  A.  481.  and  note. 

""Schouler     Bailments      (3d     ed.),  ""  Hale    Bailments,    p.    208,     citing 

§§    145,    146;    Story    Bailments    (9th  Innes,  Torts;  Schouler  Bailments  (3d 

ed.),  §  401;  Randleson  v.  Murray,  3  ed,),  §  146. 


8o  BAILMENTS. 

to  care  for  the  thing  hired  is  hable  for  the  acts  of  such  servant 
not  outside  of  the  course  of  his  employment.®*  If  two  persons 
jointly  hire  a  thing  for  use,  either  is  liable  for  the  negligence  or 
misconduct  of  the  other  resulting  in  its  injury.®^ 

§  83.  Assignability  of  bailee's  rights. — The  bailee  at  will, 
where  either  party  may  at  his  pleasure  terminate  the  bailment, 
and  the  bailee  in  whom  the  bailment  is  a  personal  trust,  have  no 
assignable  interest  in  the  chattel  whose  use  is  bailed  to  them  for 
hire,  and  any  assignment  by  them  passes  no  interest,  but  instead 
terminates  the  bailment,  authorizing  the  owner  to  bring  an  ac- 
tion in  trover  or  conversion.''®  But  in  certain  circumstances 
where  there  is  no  personal  confidence  it  would  be  entirely  in  ac- 
cord with  the  purpose  of  the  bailment  that  the  hirer  should  as- 
sign his  interest,  as  where  property  is  leased  for  a  number  of 
years  with  the  use  of  the  furniture  or  of  farm  implements  and 
stock,  in  which  case  the  lessee,  unless  forbidden  by  his  contract, 
may  sublet,  and  assign  his  right  to  the  use  of  the  chattels.®^ 

§  84.  Special  classes  of  hiring  the  use  of  a  thing — Prop- 
erty for  exhibition. — Where  a  general  or  special  invitation  is 
given  to  persons  to  deliver  articles  to  a  corporation  or  association 
or  another  person  for  the  purpose  of  exhibition  in  public,  to  be 
redelivered  after  the  exhibition,  the  bailment  is  one  of  hire,  since 
both  parties  receive  a  benefit,  and  the  invitation  and  the  placing 
of  the  articles  in  the  care  of  the  exhibitor  form  a  sufficient  con- 
sideration, so  that  the  bailee  is  held  to  ordinary  care.®^ 

•*See  notes  61  and  62.  44  Maine  491,  69  Am.  Dec.  118;  Bai- 

*'Davey    v.    Chamberlain,    4    Esp.  ley  v.   Colby,  34  N.   H.  29,  66  Am. 

229;  O'Brien  v.  Bound,  2  Speers  (S.  Dec.  752. 

Car.)  495,  42  Am.  Dec.  384.  Where  "Day  v.  Bassett,  102  Mass.  445; 
one  hires  a  horse  and  the  other  rides  Vincent  v.  Cornell,  13  Pick.  (Mass.) 
as  a  passenger  or  friend,  and  takes  294,  23  Am.  Dec.  683;  Bailey  v.  Col- 
no  part  in  the  control,  the  hirer  only  by,  34  N.  H.  29. 

is  responsible   (Dyer  v.  Erie  R.  Co.,  *^  Prince  v.  Alabama  State  Fair,  106 

71  N.  Y.  228),  but  if  the  other  abets,  Ala.  340,  17  So.  449,  28  L.  R.  A.  716; 

both  are  liable.    Banfield  v.  Whipple,  Vigo  Agricultural   Society  v.  Brum- 

10   Allen    (Mass.)    27,   87   Am.   Dec.  fiel,  102  Ind.  146,  1  N.  E.  382,  52  Am. 

618.  Rep.  657.    And  see  Smith  v.  Minne- 

"  Russell  V.  Favier,  18  La.  585,  36  apolis  Library  Board,  58  Minn.   108, 

Am.  Dec.  662;   Crocker  v.  Gullifer,  59  N.  W.  979. 


CONTRACTS    OF    HIRING.  8l 

§  85.     Special  classes — Storekeeper  or  bath-house  keeper 
as  hired  bailee  of  personal  belongings  of  customer  or  patron. 

— A  bailment  is  for  hire,  even  though  no  direct  hire  is  paid  for 
the  bailment,  where  it  is  a  necessary  incident  of  a  business  in 
which  the  bailee  makes  a  profit.^^  This  rule  was  applied  where 
the  proprietor  of  a  bath-house  invited  its  patrons,  when  they  pur- 
chased tickets  entitling  them  to  a  bath,  to  place  their  valuables 
in  a  box,  the  key  to  which  was  given  to  the  patron,  and  while 
a  patron  was  bathing,  the  key  was  taken  by  a  trespasser  from  the 
pocket  of  his  clothing  hanging  in  the  dressing  room,  and  turned 
in  to  the  attendant,  who  delivered  a  gold  watch  and  money  to 
the  holder  of  the  key,  and  it  was  held  that  the  proprietor  was 
liable  for  the  loss  of  the  goods,  which  had  been  caused  by  want  of 
ordinary  care  for  their  preservation.^"  The  same  rule  is  applied 
where  one  who  goes  into  a  retail  clothing  store  to  purchase  cloth- 
ing is  invited  by  a  salesman  to  place  his  valuables  in  a  certain 
place,  or  to  lay  his  clothing  in  a  certain  place,  while  tiying  on 
garments,  and  it  is  necessary  and  usual  for  certain  articles  of 
clothing  to  be  removed  when  trying  on  others,  or  for  an  article 
such  as  a  watch  to  be  removed  from  the  person,  and  through 
want  of  ordinary  care  on  the  part  of.  the  proprietor  of  the  store 
or  his  clerk,  the  articles  of  clothing  or  valuables  laid  aside,  or- 
valuables  contained  in  the  pockets  of  these  articles,  are  taken,  the 
proprietor  is  held  liable  for  the  loss.'^  But  where  a  customer,^ 
knowing  that  the  clerks  are  busy,  proceeds  to  wait  on  himself, 
and  without  express  or  implied  invitation  lays  aside  his  coat  and  , 
vest  to  try  on  garments,  knowing  that  no  clerk  is  there  to  watch 
them,  and  the  garments  are  stolen  when  there  is  no  one  but 
himself  to  watch  them,  he  can  not  hold  the  proprietor  of  the 
store  liable."    This  might  perhaps  be  considered  as  the  hiring  of 

''  See  cases  cited  in  notes  70  and  71.  ^^  Delmour  v.  Forsythe,  128  N.  Y.  S. 

""Tombler  v.  Keolling,  60  Ark.  62,  649;  Bunnell  v.  Stern,  122  N.  Y.  539, 

28  S.  W.  795,  27  L.  R.  A.  502,  46  Am.  25  N.  E.  910,  10  L.  R.  A.  481,  19  Am. 

St.    146;   Walpert  v.   Bohan,   126  Ga.  St.   519,    rehearing   denied,  26   N.    E. 

532,  55  S.  E.  181,  8  Am.  &  Eng.  Ann.  758;   Woodruff   v.    Painter,    150    Pa. 

Cas.  89,  6  L.  R.  A.   (N.  S.)  828,  115  St.  91,  24  Atl.  621,  16  L.  R.  A.  451, 

Am.    St.    114;    Sulpho-Saline    Bath  30  Am.  St.  786. 

Co.  V.  Allen,  66  Nebr.  295,  92  N.  W.  "Wamser    v.    Browning,    Kmg    & 

354,    1    Am.   &    Eng.    Ann.    Cas.  21;  Co..  187  N.  Y.  87,  79  N.  E.  861.  10 

Levy  V.  Appleby,  1  City  Ct.  (N.  Y.)  L.  R.  A.   (N.  S.)   314n. 
252. 

Bailments — 6 


82  BAILMENTS. 

the  custody  of  an  article  by  the  bailor,  yet  upon  reflection  it  is 
seen  that  the  bailment  may  be  said  to  be  primarily  for  the  benefit 
of  the  merchant  or  bath-house  keeper,  who  has  impliedly  invited 
the  bailee  to  enter  his  establishment,  and  in  order  to  make  his 
place  of  business  more  attractive,  has  assumed  the  care  of  his 
belongings.  A  railroad  company  which  maintains  a  parcel  room 
where  it  receives  and  checks  property  for  safekeeping  to  be  re- 
delivered at  such  room,  for  which  services  it  makes  a  nominal 
charge,  is  a  bailee  for  hire  as  to  the  goods  checked,  and  not  a 
gratuitous  bailee,  the  transaction  being  one  of  mutual  benefit,  and 
the  railroad  company  must  take  ordinary  care  of  the  property, 
and  is  liable  for  ordinary  negligence.^^ 

§86.  Termination  of  the  contract  of  hiring — Redelivery 
and  recompense. — ^The  general  principles  in  regard  to  the  ter- 
mination of  a  bailment,  as  heretofore  discussed^  ^pply-  The 
bailee's  conversion  of  the  articles  bailed  puts  an  end  to  the  rela- 
tion and  makes  him  absolutely  liable.  Destruction  of  the  chattel 
before  the  completion  of  the  bailment  purpose  also  terminates 
the  bailment.  The  bailee's  duties  upon  the  fulfilment  of  the  use 
for  which  the  thing  was  hired  are  to  redeliver  it  to  the  letter, 
and  to  make  to  him  recompense  for  its  use,  if  this  has  not  been 
done  before.'^*  His  duties  as  to  both  of  these  may  be  very  much 
dependent  upon  the  contract  agreement.  In  general  the  thing  is 
to  be  restored  in  as  good  condition  as  when  received,  with  the  ex- 
ception of  losses  caused  by  ordinary  wear  and  tear,  losses  caused 
by  inevitable  accident  or  superior  power,  and  losses  which  have  oc- 
curred without  culpable  negligence  or  misconduct  on  the  bailee's 
part.'°  However,  though  a  bailee  in  a  contract  of  hiring  is  by 
law  held  only  to  a  reasonable  care,  he  may  enter  into  such  a  con- 
tract so  that  he  will  become  the  insurer  of  the  safety  of  the  prop- 

"Fraam   v.   Grand   Rapids   &c.   R.  "Schouler     Bailments     (3d     ed.), 

Co.,  161  Mich.  556,  126  N.  W.  851,  29  §§  158-160;  Hale  Bailments,  pp.  209, 

L.  R.  A.   (N.  S.)   834,  and  note,  21  210;  Goddard  Bailments,  §  124. 

Ann.    Cas.    96,    and   note.     See    also,  "See    §   81;   Schouler    Bailments 

holding  a  railroad  company  liable  as  (3d  ed.),  §  159.    As  to  redelivery  af- 

a  warehouseman  in  such  a  case.  Terry  fected  bv  contract,  see  Walker  v.  Be- 

V.   Southern  R.   Co.,  81   S.   Car.  279,  ment    (Ind.    App.),    94    N.    E.    339; 

62  S.   E.  249,   18  L.   R.   A.    (N.    S.)  Colorado  &c.  Tramway  Co.  v.  Mont- 

295n;  Hofford  v.  New  York  Cent.  &c.  gomery  Mach.  Co.,  49  Colo.  132,  HI 

R.  Co.,  43  Pa.  Super.  Ct.  303.  Pac.  848. 


CONTRACTS   OF    HIRING. 


83 


erty  bailed  while  in  his  possession,  and  the  law  will  enforce  such 
contract,  even  if  loss  is  caused  by  inevitable  accident.  So  where 
the  contract  is  to  return  the  bailment  in  good  condition  or  pay  its 
value,  it  is  held  that  the  contract  is  absolute,  and  that  the  bailee 
is  liable  as  an  insurer.'*^  The  bailee  for  hire  of  a  horse  who  con- 
tracts expressly  to  return  the  horse  in  good  condition  or  to  pay 
its  value  is  an  insurer,  and  if  the  horse  dies  while  in  the  bailee's 
possession  without  his  fault  he  is  liable  for  its  value,  and  in  an 
action  on  such  contract  it  is  not  necessary  to  allege  or  prove  neg- 
ligence on  the  part  of  the  bailee,  but  it  is  sufficient  to  prove  the 
contract  and  the  bailee's  refusal  to  comply  therewith  on  demand.'^ 
The  hirer  must  return  to  the  letter  personally,  or  his  empowered 
agent,  personal  representative  or  transferee,  as  the  circumstances 
may  be.'®  He  must  return  at  the  proper  time,  which  may  be 
either  at  the  termination  of  the  purpose  of  the  bailment,  or  upon 
the  bailor's  rig-htful  demand.'^    A  failure  to  return  would  con- 


'°  Grady  v.  Schweinler,  16  N.  Dak. 
452,  113  N.  W.  1031,  15  Am.  &  Eng. 
Ann.  Cas.  161,  and  note.  In  the  fol- 
lowing cases  the  bailee  was  held  lia- 
ble for  a  loss  not  caused  by  his  negli- 
gence :  Pope  V.  Farmers'  Union  &c. 
Co.,  130  Cal.  139,  62  Pac.  384,  53  L. 
R.  A.  673,  80  Am.  St.  87  (contract 
to  deliver  bailment,  damage  by  ele- 
ments excepted,  bailee  liable  for  dam- 
age by  fire)  ;  Archer  v.  Walker,  38 
Ind.  472  (contract  that  bonds  were 
to  be  returned  or  accounted  for)  ; 
Federal  Chemical  Co.  v.  Green,  33 
Ky.  L.  671,  110  S.  W.  859  (contract 
to  store  fertilizers  and  be  responsible 
for  their  loss  from  any  cause)  ;  Rein- 
stein  V.  Watts,  84  Maine  139,  24  Atl. 
719  (contract  to  hold  goods  at  risk 
of  bailee)  ;  Drake  v.  White,  117  Mass. 
10  (contract  to  deliver  bailment  or 
equivalent  in  money)  ;  National  Cash 
Register  Co.  v.  Caillias,  84  N.  Y.  S. 
116  (contract  for  the  safe  custody  of 
a  bailment  and  for  its  safe  and  peace- 
able return)  ;  Rapid  Safety  Fire  Ex- 
tinguisher Co.  V.  Hay-Budden  Mfg. 
Co.,  37  Misc.  (N.  Y.)  556,  75  N.  Y. 
S.  1008,  affd.  77  App.  Div.  (N.  Y.) 
643.  79  N.  Y.  S.  1145  (contract  to  pay 
value  of  property  damaged  or  the 
cost  of  repairing  same) ;  Austin  v. 


Miller,  74  N.  Car.  274  (contract  to 
return  a  horse  unhurt  or  pay  its 
value).  But  if  the  contract  is  to  re- 
turn the  bailment  in  good  condition, 
or  in  as  good  condition  as  when  re- 
ceived, ordinary  wear  and  tear  ex- 
cepted, and  there  is  no  stipulation  to 
pay  the  value  in  case  of  failure  to  re- 
turn, the  weight  of  authority  would 
hold  that  there  is  no  intention  to  en- 
large the  common-law  liability  of  the 
bailee.  Seevers  v.  Gabel,  94  Iowa  75, 
62  N.  W.  669,  27  L.  R.  A.  733,  58  Am. 
St.  381;  St.  Paul  &c.  Co.  v.  Minne- 
apolis &c.  Co.,  26  Minn.  243,  2  N.  W. 
700,  37  Am.  Rep.  404;  cases  cited  in 
note,  15  Am.  &  Eng.  Ann.  Cas.  163. 
Contra,  Harvey  v.  Murray,  136  Mass. 
377;  Direct  Nav.  Co.  v.  Davidson, 
32  Tex.  Civ.  App.  492,  74  S.  W.  790 ; 
Harms  v.  City  of  New  York,  125  N. 
Y.  S.  477,  69  Misc.  (N.  Y.)  315; 
Woodward  v.  Cutter,  33  Vt.  49. 

"Grady  v.  Schweinler,  16  N.  Dak. 
452,  113  N.  W.  1031,  14  L.  R.  A.  (N. 
S.)  1089n,  125  Am.  St.  674,  IS  Am. 
&  Eng.  Ann.  Cas.  161. 

™  Schouler  Bailments  (3d  ed.), 
§  159 

"  Schouler  Bailments  (3d  ed.), 
§  159;  Cobb  v.  Wallace,  5  Cold. 
(Tenn.)  539,  98  Am.  Dec.  435. 


84  BAILMENTS. 

stitute  a  conversion,^"  unless  the  letter  elected  to  continue  the 
bailment.*^  If  the  article  has  sustained  damages,  or  has  been 
used  unauthorizedly,  the  bailee  is  liable  for  the  full  damages, 
even  though  the  owner  receives  it  back.^^  The  claim  of  one 
who  has  superior  rights  to  the  bailor  may  excuse  redelivery  to 
him.^^ 

The  measure  of  damages  for  the  unauthorized  use  of  the 
property  of  another  by  a  bailee  is  not  the  value  that  may  be  pro- 
duced by  the  labor  and  investment  of  the  wrongdoer,  combined 
with  such  use  of  the  property,  but  is  the  value  of  the  use  itself 
and  any  damage  that  may  be  done  to  the  property  in  so  using  it, 
or  if  the  use  amounts  to  a  conversion,  then  the  measure  of  dam- 
ages will  be  the  value  of  the  property  itself.^*  Compensation 
must  be  made  according  to  the  agreement  of  the  parties,  or  if 
not  fixed  by  agreement,  according  to  usage,  or  a  reasonable 
amount.^'^  If  accomplishment  of  the  bailment  purpose  becomes 
impossible  from  the  destruction  of  the  chattel  without  fault  of 
either  party,  the  bailee  is  not  liable  for  the  agreed  compensation, ^° 
nor  the  bailor  for  the  failure  of  the  use.®^  But  for  services  which 
the  bailee  has  received  before  the  destruction,  he  must  pay  what 
the  use  was  worth,^®  or  under  the  rule  in  some  jurisdictions, 
where  a  contract  is  divisible,  a  pro  rata  apportionment  of  the 
agreed  price.^^  If  the  letter's  fault  has  prevented  the  contem- 
plated use,  the  bailee  owes  him  no  compensation,®''  but  if  the 

•* Story  Bailments  (9th  ed.),  §  414;  Schouler  Bailments   (3d  ed.),  §  160; 

In  re  Ware,  5  Ch.  Div.  866;   Benje  United  States  v.  Shea,  152  U.  S.  178, 

V.     Creagh's    Admr.,    21     Ala.     151 ;  38  L.  ed.  403. 

Vaughan  v.  Webster,  5  Harr.  (Del.)  ^Taylor  v,  Caldwell,  3  Best.  &  S. 

256;  Willard  v.  Bridge,  4  Barb.   (N.  826,    113    E.    C.    L.    824;    Collins    v. 

Y.)  361.  Woodruff,  9  Ark.  463;  Bacot  v.  Par- 

■^ Benje  v.  Creagh's  Admr.,  21  Ala.  nell,  2  Bail.   (S.  Car.)  424. 

151.  "Stewart  v.  Stone,  127  N.  Y.  500, 

*Bigbee  V.   Coombs,  64  Mo.   529;  28  N.  E.  595,  14  L.  R.  A.  215n. 

Reynolds  v.  Shuler,  5  Cowen  (N.  Y.)  **  Williams  v.  Holcombe,  1  N.  Car. 

323.  L.   Repos.   365;   Bacot   v.    Parnell,  2 

*=  European  &c.  Royal  Mail  Co.  v.  Bailey     (S.     Car.)     424;     Ripley    v. 

Royal  Mail  Steam-Packet  Co.,  10  C.  Wightman,  4  McCord  (S.  Car.)  447. 

B.  (N.  S.)  860;  Erwin  v.  Arthur,  61  ^Collins  v.  Woodruff,  9  Ark.  463; 

Mo.  386.  Williams  v.  Holcombe,  1  N.  Car.  L. 

"See  Negus  v.  Simpson,  99  Mass.  Repos.  365;  Muldrow  v.  Wilmington 

388;   State  v.   State  Journal   Co.,  75  &c.   R.   Co..    13   Rich.    (S.   Car)    69; 

Nebr.  275,  106  N.  W.  434,  13  Am.  &  George  v.  Elliott,  2  Hen.  &  M.  (Va.) 

Eng.  Ann.  Cas.  254.  5. 

«Hale    Bailments,    pp.     45,     210;  '"Hickok  v.  Buck,  22  Vt.  149. 


CONTRACTS    OF    HIRING.  85 

carrying  out  of  the  bailment  purpose  was  prevented  by  some- 
thing not  the  fault  of  the  bailor  or  not  the  destruction  of  the  chat- 
tel, the  bailee  must  pay  the  agreed  compensation."'  And  if  the 
bailee  pays,  as  for  the  total  loss  or  destruction  of  the  article,  he 
becomes  the  owner,  and  is  subrogated  to  the  letter's  rights."^ 

"Hale  Bailments,  p.  211.  Bailments  (9th  ed.),  §  414:  Schouler 

■""Hale    Bailments,    p.    209;    Story    Bailments  (3d  ed.),  §  161. 


CHAPTER  V. 

CONTRACTS  OF    HIRING   SERVICES   ABOUT   A   THING. 

§  87.  Contracts    of   hiring   services  §  91.  Expenses    and    insurance. 

about  a  thing — Operis  bail-  92.  Compensation — Where     work 

ments.  incomplete. 

88.  Creation   of  the   relation.  93.  Compensation — Where    work 

89.  Title   and  accession — Bailee's  completed,   but   not  accord- 

special   property.  ing  to  contract. 

90.  Diligence    and    skill    required         94.  Bailee's    lien    for    amount    of 

of  bailee.  compensation. 

§  87.  Contracts  of  hiring  services  about  a  thing — Operis 
bailments. — The  classification  of  contracts  of  hiring  before 
given  embraced  four  classes,  of  which  the  latter  three  may  be 
grouped  for  practical  treatment  as  those  in  which  the  bailor  con- 
tracts for  services  about  a  thing,  which  may  be  its  custody,  work  f 
upon  it,  or  its  carriage.  The  distinguishing  feature  of  this 
group  is  the  fact  that  the  bailee  performs  services  for  the  bailor, 
and  the  bailor  pays  a  compensation  to  him,  while  the  classes 
differ  from  each  other  only  in  the  character  of  the  services.  The 
gratuitous  bailments  for  the  benefit  of  the  bailor  resemble  the 
operis  bailments  for  mutual  benefit,  the  only  difference  being 
that  in  the  present  class  the  bailee  receives  a  reward  for  the  per- 
forming of  services  similar  to  those  which  in  the  other  class  he 
performed  gratuitously,  and  is  therefore  held  to  a  higher  degree 
of  care  in  their  performance.  The  exceptional  bailments  of  the 
innkeeper,  the^  posji-office,  and  the  common  carrier  are  also 
branches  of  the  locatio  operis  bailment,  which  will  be  considered 
separately.  In  the  sections  immediately  succeeding  we  shall  dis- 
cuss contracts  involving  the  doing  of  something  about  things 
hired,  as  where  artisans  are  employed  to  make  or  repair  chattels, 
or  factors  to  sell  them,  or  those  not  common  carriers  are  hired  to 
carry  them,^  while  in  later  sections  mention  will  be  made  of  the 

*  Among  other  bailments  of  this  626,  44  So.  1029;  Sea  Ins.  Co.  v. 
class  are  the  delivery  of  cotton  to  be  Vicksburg  &c.  R.  Co.,  159  Fed.  676, 
ginned  (Hackney  v.  Perry,  152  Ala.    86  C.  C  A.  256,  17  L.  R.  A.  (N.  S.) 

86 


HIRING    SERVICES    ABOUT    A    THING,  8/ 

respects  where  the  bailment  merely  for  the  custody  of  things 
differs  from  that  where  the  bailment  is  for  feasance.  The  bail- 
ments for  custody  include  those  entered  into  by  warehousemen, 
agistej-s,  wharfingers,  forwarders,  elevators  and  cold  storage  com- 
panies, safe  deposit  companies,  and  similar  relations.  The  gen- 
eral principles  of  the  law  of  bailments  apply  to  these  contracts, 
and,  with  a  slight  change  of  terms,  what  has  been  said  concerning 
the  hiring  of  the  use  of  a  thing  would  equally  apply  to  the  hiring 
of  sei-vices  about  a  thing.  The  aim  of  the  following  sections  will 
only  be  to  give  specific  applications  of  these  principles  brought 
about  by  the  peculiar  circumstances  of  the  relationship  entered 
into  between  the  parties  to  the  bailment. 

§  88.  Creation  of  the  relation. — The  bailment  relation  in 
this  class  arises  out  of  an  express  or  implied  contract.  The  rights 
of  the  parties  may  be  changed  by  express  contract  to  any  extent^ 
not  forbidden  by  public  policy,  but  unless  this  is  done,  their 
rights  are  governed  by  well-settled  principles.  Where  one  is 
hired  to  do  work  upon  a  thing,  the  bailment  relation  begins  upon 
delivery  and  acceptance  by  him,  and  thereupon  he  takes  up  the 
duties  and  liabilities  implied  by  law.  There  is  no  bailment  unless 
the  property  is  delivered  into  the  possession  of  the  workman, 
for  one  who  makes  repairs  upon  a  thing  in  the  owner's  possession" 
is  not  a  bailee,  but  a  servant  or  employe,  whose  rights  are  deter- 
mined by  contract.^ 

§  89.  Title  and  accession — Bailee's  special  property. — 
The  delivery  of  cloth  to  a  tailor  or  to  a  factory  to  be  made  into 
clothes,  of  jewelry  to  a  jeweler  to  be  repaired,  or  materials  to  him 
from  which  jewelry  is  to  be  made,  of  shoes  to  a  cobbler  to  be 

925n),  the  delivery  of  carpet  to  be  is  held  a  bailee  of  the  timber   and 

cleaned     (Bowen    v.    Isenberg    Bros,  lumber.    Chaffin  v.  State,  5  Ga.  App. 

Co.  (Del.  Super.  Ct.),  67  Atl.  152),  of  368,  63  S.  E.  230.    One  who  in  con- 

an  automobile  to  be  repaired   (Ford  sideration   of   a   purchase   of    goods 

Motor   Co.  V.   Osburn,    140   111.   App.  agrees  to  receive,  care  for  and  ship 

633),     or     a     carriage     for     repairs  other  goods   purchased   elsewhere   is 

(Studebaker  Bros.  Mfg.  Co.  v.  Car-  a  bailee  for  hire.   Michigan  Stove  Co. 

ter,  51  Tex.  Civ.  App.  331,  111  S.  W.  v.  Pueblo  Hdw.  Co.,  51  Colo.  160,  116 

1086).     Where  the  owner  of  timber  Pac.  340. 

and  a  saw-mill  employs  one  to  take  "  Street   Found.   Leg.   Liab.,  vol.   2, 

possession  of  the  mill  and  timber  and  ch.  28,  p.  289. 
saw  the  timber  into  lumber,  the  latter 


88  BAILMENTS. 

repaired,  of  clothing  to  a  pressing  or  cleaning  establishment  or 
to  a  laundry,  of  a  horse  to  a  blacksmith  to  be  shod,  of  an  auto- 
mobile to  a  garage-keeper  for  repairs,  of  a  carriage  or  wagon 
to  one  for  repairs,  of  lumber  to  a  mechanic  to  have  an  article  of 
furniture  made  therefrom,  of  cotton  to  a  compress  company  to 
be  ginned, — these  are  familiar  examples  of  the  bailing  of  a  chat- 
tel to  have  work  done  upon  it.  In  many  of  these  instances,  no- 
tably where  the  purpose  of  the  bailment  is  repair,  the  bailee  adds 
to  the  materials  furnished  by  the  bailor  materials  of  his  own, 
which  become  attached  to  the  bailed  chattel  and  a  part  of  it,  and 
in  all  of  these  bailments  the  value  of  the  chattel  bailed  is  aug- 
mented by  the  labor  performed  upon  it.  The  question  then 
arises,  especially  where  the  article  is  destroyed  before  the  bail- 
ment purpose  is  completed,  or  where  third  persons  interfere  with 
the  bailee's  possession,  in  whom  is  the  title  to  the  property?  It 
is  the  doctrine  of  accession  that  the  materials  and  labor  furnished 
by  the  bailee  become  a  part  of  the  chattel,  even  if  the  materials 
are  of  greater  value  than  the  chattel,  and  if  the  bailor  has  fur- 
nished simply  raw  material,  he  has  the  title  to  the  finished  prod- 
uct, in  both  instances  the  increased  value  from  the  materials  and 
the  labor  furnished  by  the  workman  being  added  to  his  property 
by  accession.^  On  the  other  hand,  where  the  workman  himself 
furnishes  the  material  to  make  a  chattel,  it  is  not  a  bailment,  but 
an  executory  contract  of  sale,  and  the  title  is  in  the  workman 
until  delivery  of  the  completed  chattel  to  the  vendee.*  And  the 
general  rule  is  that  where  material  is  furnished  by  one  to  be 
worked  upon  by  another,  the  product  to  be  sold  in  the  market 
and  the  proceeds  divided,  the  relation  between  the  parties  is  a 
bailment,  and  not  a  partnership  or  joint  undertaking.^  But  in 
this  as  in  other  bailments,  the  bailee  has  a  special  property  in  the 
thing  bailed,  and  in  this  case  his  interest  increases  in  value  during 
the  accomplishment  of  the  bailment  purpose.     He  has  the  right 

°Pulcifer  v.    Page,   32   Maine  404,  "  Sattler  v.   Hallock,   15   App.  Div. 

54  Am.  Dec.  582  and  note;  Mack  v.  (N.  Y.)  500,  44  N.  Y.  S.  543,  160  N. 

Snell,  140  N.  Y.  193,  35  N.  E.  493,  H  Y.  291.  54  N.  E.  667.  46  L.  R.  A.  679, 

Am.  St.  534n.  IZ  Am.  St.  686 ;  Gregory  v.  Stryker,  2 

*See    cases    cited    in    note   3.     See  Denio  (N.  Y.)  628;  Stewart  v.  Stone, 

Central  Lith.  &  Eng.  Co.  v.  Moore,  127  N.  Y.  500,  28  N.  E.  595,  14  L.  R. 

75  Wis.  170,  43  N.  W.  1124,  6  L.  R.  A.  215n;   Pierce  v.   Schenck,  3  Hill 

A.  788,  17  Am.  St.  186.  (N.  Y.)  28. 


HIRING    SERVICES    ABOUT    A    THING.  89 

to  possession,  even  against  the  bailor,  and  may  bring  trespass  or 
trover  to  maintain  his  interest  against  any  one  who  takes  the 
chattel  from  his  possession.^  But  the  bailor  has  the  right  to  sue 
a  third  party  at  any  time,  even  before  the  expiration  of  the  bail- 
ment, and  recover  for  permanent  injury  to  the  property,  since  he 
has  a  reversionary  interest.'^  A  bailee  for  hire  under  a  contract 
to  transport  and  store  cement  for  the  bailor,  who  has  also  made 
a  separate  contract  to  purchase  a  quantity  of  cement  from  the 
bailor,  cannot  fill  his  order  himself  from  the  property  in  his  pos- 
session as  bailee,  without  the  bailor's  consent,  and  his  attempt  to 
do  so  will  justify  the  bailor's  termination  of  the  contract  of  bail- 
ment.^ 

§  90.  Diligence  and  skill  required  of  bailee. — This  is  a 
bailment  for  mutual  benefit,  and  in  accomplishing  the  bailment 
purpose  the  bailee  must  use  ordinary  diligence.  It  may  be  said 
generally,  that  "it  is  the  duty  of  the  bailee  to  receive,  care  for  and 
keep  the  materials  or  things  furnished  for  the  undertaking  until 
delivery  to  the  bailor  according  to  the  contract,  or  until  for  other 
reasons  the  bailment  is  terminated;  to  perform  the  services  in 
good  faith,  and  as  required  by  the  undertaking ;  to  do  the  work 
well  and  produce  the  result  of  the  undertaking  within  the  time 
agreed  upon ;  to  use  the  skill  and  diligence  required,  or  the  skill 
and  judgment  claimed  by  him,  the  bailee,  to  be  required  to  exer- 
cise good  faith  in  all  things  pertaining  to  the  contract,  deal  hon- 
estly and  redeliver  the  property  to  the  bailee  when  the  contract 
is  fulfilled.  *  *  *  In  exercising  all  and  each  of  these  re- 
quirements he  must  use  ordinary  diligence,  and  if  he  fails  to  do 
so  and  injury  results  therefrom  to  the  bailor,  he  will  be  liable 
therefor."^  And  the  rule  is  that  if  the  bailee  fails  to  perform  his 
contract  obligations  in  that  the  work  was  defectively  and  im- 
properly done,  the  bailor  may  refuse  to  pay  him  for  his  materials 

"Schouler     Bailments      (3d     ed.),  E.  &  W.  R.  Co.,  61  N.  J.  L.  287,  41 

§  110;  Evans  v.  Nichol,  4  Scott  N.  R.  Atl.  1116,  43  L.  R.  A.  849  and  note; 

43;    Shaw  v.   Kaler.   106   Mass.   448;  Butts  v.  Collins,  13  Wend.   (N.  Y.) 

Burdict  v.  Murray,  3  Vt.  302,  21  Am.  139. 

Dec.  588.  *  Atlantic  Bldg.  Supply  Co.  v.  Vul- 

^  McGraw  v.  Patterson,  47  111.  App.  canite   Portland   Cement  Co.,  203   N. 

87;    Shaw  v.   Kaler,   106  Mass.   448;  Y.  133.  96  N.  E.  370,  36  L.  R.  A.  (N. 

Howard  v.  Farr,  18  N.  H.  457;  New  S.)  622  and  note. 

Jersey  Elec.  R.  Co.  v.  New  York,  L.  "Van  Zile  Bailments  (2d  ed),  §  140. 


90  BAILMENTS. 

and  labor,  and  does  not  lose  his  right  to  do  this  because  he  takes 
back  the  property,  for  it  was  his  already/"  Generally  the  bailee 
may  employ  servants  or  agents  to  perform  the  services  required, 
unless  the  nature  of  the  employment  requires  his  personal  serv- 
ices, as  when  a  painter  is  employed  to  paint  a  picture,  and  he  is 
liable  for  injury  caused  by  acts  of  such  servants  within  the  course 
of  their  employment.^^  The  bailee  must  perform  the  work  with 
the  skill  and  ability  which  the  particular  work  requires,^^  and  is 
under  a  common-law  liability  to  use  such  reasonable  skill  as  the 
undertaking  demands  to  do  the  work  in  a  reasonable  and  proper 
manner,  whatever  its  nature/^  So  where  a  dress  was  delivered 
to  a  dressmaker  without  any  instructions,  and  she  made  it  up  with 
the  cloth  wrong  side  out,  the  court  held  that  an  action  could  be 
maintained  against  her  as  not  having  used  the  degree  of  care  and 
skill  which  would  enable  a  dressmaker  to  do  the  work  entrusted 
to  her  in  a  proper  manner/^  It  is  said,  "Every  mechanic  who 
takes  any  material  to  v/ork  up  for  another  in  the  course  of  his 
trade,  as  where  a  tailor  receives  cloth  to  be  made  into  a,  coat,  or 
a  jeweler  a  gem  to  be  set  or  engraved,  is  bound  to  perform  it 
in  a  workmanlike  manner."^®  It  does  not  matter  that  the  bailee 
has  not  the  required  skill ;  he  is  liable  from  the  fact  that  he  has 
held  himself  out  as  possessing  the  skill  requisite.^*'     Since  the 

"McKibben  v.  Bakers,   1  B.   Mon.  58  Pa.  St.  414.     It  is  a  sufficient  de- 

(Ky.)    120;  Dale  v.  See,  51  N.  J.  L.  fense, in  an  action  to  recover  the  value 

378,   18  Atl.  306,  5  L.  R.  A.  583,   14  of  theatrical  costumes  delivered  to  be 

Am.  St.  688;  Mack  v.  Snell,   140  N.  cleaned    and    not    returned,    to    show 

Y.  193,  35  N.  E.  493,  Z1  Am.  St.  534.  that    defendant    employed    a    compe- 

"Van    Zile    Bailments     (2d    ed.),  tent  man  to  do  the  work,  employed 

§  148.  the   best    known    process,    and    used 

^"^  Fireman's     Fund     Ins.     Co.     v.  special  care,  but  in  spite  of  such  care 

Schreiber    (Wis.),    135    N.    W.    507.  the  materials  used  in  cleaning  were 

See  opinion   for  complete  discussion  unaccountably    ignited,    and    fire    re- 

of  liability  of  bailee  for  hire  for  acts  suited,  destroying  some  costumes  and 

of  his  servants.  damaging   others,   and   an   offer   was 

"Story  Bailments  (9th  ed.),  §  431;  made   to    repair   the   damaged   goods 

Lincoln  v.  Gay,  164  Mass.  537,  42  N.  and  put  them  in  as  good  condition  as 

E.   95,   49   Am.    St.   480;    Jackson   v.  before.      Gingerbread     Man     Co.     v. 

Adams,  9  I\Iass.  484,  6  Am.  Dec.  94;  Schumacher,  35  Pa.  Super.  Ct.  652. 

Dale  V.  See,  51  N.  J.  L.  378,  18  Atl.  "Lincoln  v.  Gav.  164  Mass.  537,  42 

306,  5  L.  R.  A.  583,  14  Am.  St.  688;  N.  E.  95,  49  Am.  St.  480. 

Mack  V.  Snell,  140  N.  Y.  193,  35  N.  '"2  Kent  Com.  588;  Keith  v.  Bliss, 

E.  493,  Zl  Am.  St.  534 ;  P.  H.  Gill  &c.  10  111.  App.  424. 

Mach.  Works  v.  Detroit-Cadillac  &c.  ^'Van    Zile    Bailments     (2d    ed.). 

Car.  Co.,  139  App.  Div.  (N.  Y.)  205,  §  151;  Mack  v.  Snell,  140  N.  Y\.193» 

123  N.  Y.  S.  621 ;  Rodgers  v,  Grothe,  35  N.  E.  493,  11  Am.  St.  534.' 


HIRING    SERVICES    ABOUT    A    THING.  9I 

bailment  Is  of  mutual  benefit,  he  is  held  only  to  the  exercise  of 
ordinary  skill,  but  this  ordinary  skill  is  such  skill  as  the  ordinary 
skilful  workman  in  such  kind  of  work  would  exercise  upon  his 
own  material  in  performing  a  similar  service  under  the  particular 
circumstances,"  and  the  value,  difficulty  of  accomplishment,  or 
delicacy  of  the  work  to  be  done  has  a  great  bearing  on  the  degree 
of  skill  required.  A  corporation  engaged  in  the  general  mes- 
senger business  "impliedly  contracts  that  the  messengers  whom 
it  furnishes  are  suitable  and  proper  persons  for  the  performance 
of  the  ordinary  duties  of  messengers,  so  far  as  the  exercise  of 
ordinary  care  in  the  selection  and  employment  of  them  will  en- 
able it  to  procure  such  persons."^^  But  if  the  bailor  knows  that 
the  bailee  is  not  possessed  of  the  requisite  skill  when  he  hires 
him,  the  bailor  cannot,  it  seems,  recover  damages  for  the  bailee's 
failure  to  use  it.^^  ' 

If  the  bailee  can  show  that  the  ordinary  skill  of  a  work- 
man in  the  same  line  of  work  was  used,  or  that  the  defective 
workmanship  was  the  fault  of  the  bailor,  in  that  the  work  was 
done  according  to  his  directions,  or  that  the  property  or  ma- 
terials furnished  were  defective,  or  that  the  bailor  did  not  furnish 
the  necessary  funds  to  purchase  the  proper  materials  for  the 
work,  and  refused  to  expend  more,  and  the  bailee  used  the  best 
materials  obtainable  for  the  amount,  and  used  reasonable  skill — 
in  any  of  these  cases  he  may  defend  against  the  bailor  in  an  ac- 
tion for  damages  caused  by  his  failure  to  use  due  skill.-"  A 
bailee  cannot  impose  conditions  binding  upon  the  owner  after  the 
work  has  been  done,  or  at  any  time  after  the  original  contract  is 
made,  as  where  silk  was  sent  to  a  dyer,  and  a  short  time  after  its 
return,  it  was  found  to  have  been  damaged  in  the  dyeing,  but  no 
notice  was  given  to  the  bailee  for  some  months.  The  latter  could 
not  defend  upon  the  ground  that  when  the  silk  was  returned  a 
notice  was  printed  on  the  bill  which  recited  that  all  claims  for 
deficiencies  or  damages  must  be  made  within  three  days  in  order 

"Van    Zile    Bailments     (2d    ed.),  215,  2  L.  R.  A.  (N.  S.)  1091,  112  Am. 

I  152;  Dale  v.  See,  51  N.  J.  L.  378,  18  St.  324. 

Atl.  306,  5  L.  R.  A.  583,  14  Am.  St.  "Van    Zile    Bailments    (2d    ed.), 

688.  §  155. 

**  Haskell  v.  Boston  District  Mes-  ^''Van    Zile    Bailments     (2d    ed.), 

sengef  Co.,  190  Mass.  189,  Id  N.  E.  §  155. 


92  BAILMENTS. 

to  be  allowed."  As  said  before,  since  the  title  to  the  property 
is  at  all  times  in  the  bailor,  his  taking  back  the  property  is  not 
a  waiver  of  defective  or  unskilful  workmanship,  but,  on  the  other 
hand,  he  may  not  retain  material  for  an  unreasonable  time,  with- 
out informing  the  bailee  of  defects  of  which  he  does  or  could 
know  in  due  diligence,  and  because  of  such  defects  refuse  to 
recompense  the  bailee  for  the  work.-- 

§  91.  Expenses  and  insurance. — Expenses  ordinarily  in- 
cidental to  the  execution  of  the  bailment  purpose  must  be  borne 
by  the  bailee,  for  he  is  presumed  to  have  included  these  in  his 
compensation.^*  The  same  rule  applies  to  extraordinary  expenses 
as  in  other  bailments.-*  The  special  property  of  a  bailee  hired 
to  do  work  upon  a  thing  is  a  sufficient  interest  that  he  may  insure 
the  subject  of  the  bailment.^^  He  may  recover  the  entire  loss,  and 
not  merely  the  value  of  his  interest,  since  he  is  accountable  to  the 
owner  for  the  goods,  and  he  holds  any  excess  as  trustee  for  the 
bailor.^® 

§  92.  Compensation — Where  work  incomplete. — If  the 
purpose  of  the  bailment  is  fully  executed,  and  carried  out  accord- 
ing to  the  intent  of  the  parties,  of  course  the  bailee  is  entitled  to 
the  agreed  compensation,  or  if  there  was  no  agreement,  to  a  rea- 
sonable compensation,  or  the  customary  compensation."^  But 
questions  regarding  the  amount  of  compensation  to  be  paid  to 
the  bailee  frequently  arise  when  the  work  was  not  completed,  or 

^Dale  V.  See,  51  N.  J.  L.  378,  18  ^  Reitenbach  v.  Johnson,  129  Mass. 

Atl.  306,  5  L.  R.  A.  583,  14  Am.  St.  316;  Stillwell  v.  Staples,  19  N.  Y. 

688.  401 ;    Waring    v.    Indemnity    Fire 

v^      ""Mack  V.  Snell,  140  N.  Y.  193,  35  Ins.   Co.,  45  N.   Y.  606;   Lancaster 

N.  E.  493,  Zl  Am.  St.  534   (see  dis-  Mills  v.   Merchants'   Cotton-Press 

senting    opinion    by    O'Brien,    J.,    in  Co.,  89  Tenn.   1,   14  S.   W.  317,  24 

this  case).  Am.  St.  586;  California  Ins.  Co.  v. 

^  Story  Bailments  (9th  ed.),  §§425,  Union    Compress    Co..    133    U.    S. 

426,     441;     Schouler     Bailments   (3d  t,^-]^  32  L.  ed.  730,  10  Sup.  Ct.  365. 

ed.),  §  114;  2  Kent  Com   590;  Whit-  And  where  the  bailee  has  insured 

lock  V    Heard,   13  Ala.  lid,  48  Am.  ^he     entire    propertj-,    the    owner 

afc                     S    14  ni^y    adopt    such     insurance,    and 

25iir^  ^"P"^^' T»T          I.  T-r      A  obtain  the  benefit,  even  after  loss. 

«>Watersv_  Monarch  Life  Assur.  p;^^    j„^     ,^^3„     ,,     Merchants'    & 

Co    5  El.  &  Bl.  870;  Fire  Ins.  Assn.  ,  ^             ^       gg  ^^^   339  7 

V.  Merchants   &  Miners    Transp.  Co.,  a\i    on-    en  aJT    tp^^    \fs>.  AArorJno- 

66  Md.  339,  7  Atl.  905.  59  Am  Rep.  ^^^\  ^0^^  ^l^"i- ^^?„  J^k  !(  N 

162;  Sheppard  v.  Peabody  Ins.  Co.,  }>  ^"^^"'"'^y  ^''^   ^"'-  *^°-'  ^^  ^• 

21  W.  Va.  368.  ^-J"^-,      r,   •,        ,      ^    070      c^^ 

^  Hale    Bailments,    p.    22L      bee 

§  86  supra. 


HIRING    SERVICES    ABOUT    A    THING.  93 

when  the  work  was  completed,  but  not  in  accordance  with  the 
contract.  The  completion  of  the  work  may  be  prevented  in  one 
of  three  ways,  by  destruction  of  the  chattel,  by  the  fault  of  the 
bailor,  or  by  fault  of  the  bailee.  If  the  thing-  perishes  in  the  pos- 
session of  the  bailee,  and  without  his  fault,  the  bailor  must  bear 
the  loss,  since  the  title  to  the  property  and  its  accessions  is  his, 
and  he  must  also  compensate  the  workman  for  his  labor,  and  his 
materials  used,  the  reason  for  this  being  the  maxim  "res  periit 
domino."'®  But  it  has  been  said  that  if  the  contract  is  to  do  the 
work  by  the  job,  and  the  thing  perishes  accidentally  without  de- 
fault on  either  side  before  the  job  is  finished,  the  workman  will 
lose  his  work,  and  receive  no  compensation,  the  contract  being 
treated  as  an  entirety,  and  the  employer  will  lose  the  chattel.^" 
So,  of  course,  if  the  workman  were  to  furnish  all  or  the  principal 
materials,  in  which  case  he  is  the  owner  of  the  chattel  until  de- 
livery to  the  vendee,  the  maxim  "res  periit  domino"  equally  ap- 
plies, and  the  workman  must  lose  all.^"  But  if  the  work  was  done 
in  an  imperfect  or  defective  manner,  in  such  a  way  as  to  give 
the  employer  a  defense  in  a  demand  for  the  price,  had  it  been 
completed,  he  may  apply  the  same  defense  to  a  demand  for  com- 
pensation after  loss.^^  If  the  chattel  is  accidentally  lost  after 
the  work  is  completed,  but  before  delivery  back  to  the  bailor,  and 
without  fault  of  the  bailee,  the  latter  is  entitled  to  full  compen- 
sation.^^ Where  there  has  been  a  general  contract  of  hiring  and 
the  workman  has  imperfectly  done  the  work,  he  is  entitled  to 
recover  on  the  quantum  meruit  the  reasonable  value  of  the  work, 
after  deducting  the  employer's  damages,  under  the  circumstances, 
if  it  has  any  value.^^  But  if  he  has  failed  to  complete  the  contract 
through  his  own  wilful  neglect  or  refusal,  and  the  contract  is 

'^Menetone    v.    Athawes,    3    Burr,  thai,  56  Misc.  (N.  Y.)  643,  107  N.  Y. 

1592;    Gillett   v.    Mawman,    1    Taunt.  S.  772. 

137;  Laborwitz  v.  Frankfort,  4  Misc.  ^"  Schouler     Bailments      (3d     ed.), 

(N.  Y.)  275,  53  N.  Y.  St.  525,  23  N.  §  111. 

Y.  S.  1038;  Cohen  v.  Moshkowitz,  17  'M  Bell  Comm.  (7th  ed.),  p.  456. 

Misc.  (N.  Y.)  389,  39  N.  Y.  S.  1084;  ==Van    Zile    Bailments     (2d    ed.), 

Central   &c.    Co.   v.    Moore,   75   Wis.  §  139;   Schouler  Bailments   (3d  ed.), 

170.  17  Am.  St.  186.  §  111 ;  1  Bell  Comm.  (7th  ed.),  p.  456. 

^  Story  Bailments  (9th  ed.),  §§426,  ^^ Farnsworth  v.   Garrard,   1   Camp. 

426a;  2  Kent  Com.  590;  Appleby  v.  3.  9;   Basten  v.   Butter,  7  East  479  ;i 

Myers,  L.  R.  2  C.  P.  651 ;  Brumly  v.  Grant  v.  Button,  14  Johns.   (N.  Y.) 

Smith,  3  Ala.  123;   Stern  v.  Rosen-  Zll. 


94  BAILMENTS. 

entire,  he  may  recover  nothing.^*  If  the  act  or  neghgence  of  the 
bailor  prevents  completion,  he  may  recover  full  compensation.^* 
And  as  said  before,  if  the  chattel  was  destroyed  by  an  unavoid- 
able accident,  he  may  recover  pro  tanto  under  the  general  con- 
tract^" If  there  is  a  special  contract,  the  workman  may  not  re- 
cover upon  it  unless  it  is  fully  complied  with,  since  if  he  has  de- 
viated from  the  contract,  he  is  not  entitled  to  recover,  for  such  is 
a  violation  of  the  contract  and  not  a  fulfilment,^ ^  and  if  the  work 
is  not  completed,  he  cannot  recover  because  it  is  unexecuted,  and 
his  own  default  will  not  pennit  him  to  rescind  it/^  It  is  stated 
by  Mr.  Hale  as  the  better  rule  in  such  cases,  as  to  the  bailee  s 
right  to  recover  upon  the  quantum  meruit :  "If  the  special  con- 
tract still  remains  open,  and  is  unexecuted  by  the  misconduct  or 
default  of  the  workman,  he  cannot  recover  anything  for  his  work 
and  labor  and  materials  employed  in  part  fulfilment  of  the  con- 
tract.^* If  the  contract  has  been  rescinded  by  the  parties,  or  the 
work  has  not  been  completed  from  inevitable  accident,  and  is 
incapable  of  being  completed,  or  if  the  employer  has  prevented 
or  dispensed  with  the  due  execution  thereof,  the  workman  is  en- 
titled, in  the  former  case,  to  a  compensation  pro  tanto  for  the 
work  done,  unless  there  is  something  in  his  contract  that  prevents 
it  f'^  and,  in  the  latter  case,  to  a  full  compensation,  on  account  of 
the  default  on  the  other  side."*^ 

§  93.  Compensation — Where  work  completed,  but  not 
according  to  contract. — The  compensation  recoverable  where 
the  wor«k  has  been  completed,  but  there  has  been  a  deviation  from 
the  plans  of  the  contract,  or  an  improper  execution,  or  the  work 

**  Sinclair  v.  Bowles,  9  Barn.  &  C.  ^'Jennings  v.  Camp,  13  Johns.   (N. 

92;  Faxon  v.  Mansfield,  2  Mass.  147.  Y.)  94,  7  Am.  Dec.  267. 

"'Dubois  V.  Delaware  &  H.  Canal  ''Hale  Bailments,  p.  219;   Sinclair 

Co.,  4  Wend.   (N.  Y.)  285.  v.  Bowles,  9  Barn.  &  C.  92;  Faxon  v. 

"^Menetone  v.  Athawes,  3  Burr.  Mansfield,  2  Mass.  147;  Clark  v. 
1592;  Russell  v.  Koehler,  66  111.  459;  Smith,  14  Johns.  (N.  Y.)  326;  Jen- 
Smith  V.  Meegan,  22  Mo.  150,  64  Am.  nings  v.  Camp,  13  Johns.  (N.  Y.) 
Dec.  259;  Waller  V.  Parker,  5  Coldw.  94,  7  Am.  Dec.  367;  Champlin  v. 
(Tenn.)  476.  Butler,  18  Johns.  (N.  Y.)  169. 

""  Ellis    V.    Hamlen,    3    Taunt.    52;  ^''Robson    v.    Godfrey,     1     Starkie 

Taft    V.    Montague,    14    Mass.    282;  275;  Dubois  v.  Delaware  &  H.  Canal 

Jewell  V.   Schroeppel,   4   Cowen    (N.  Co.,  4  Wend.   (N.  Y.)  285. 

Y.)     564;     Sickels     v.     Pattison,     14  *^Koon  v.  Greenman,  7  Wend.   (N. 

Wend.   (N.  Y.)  257.  Y.)    121;   Dubois  v.  Delaware  &  H. 

Canal  Co.,  4  Wend.  (N.  Y.)  285. 


HIRING    SERVICES    ABOUT    A    THING.  95 

has  not  been  completed  by  the  stipulated  time,  is  dependent  upon 
the  circumstances.  If  the  work  done  is  of  no  use,  service  or  value, 
the  workman  cannot  recover  any  compensation,  and  may  be  hable 
to  the  employer  for  damages  to  the  materials.*^  But  it  has  been 
held  that  if  the  work,  though  not  properly  done,  is  of  some  use  or 
value  to  the  employer,  the  workman  may  recover  on  the  quantum 
meruit  the  amount  actually  worth  to  the  employer  under  the  cir- 
jcumstances  deducting  damages  occasioned  by  the  faulty  perform- 
ance;*^ and  that  if  the  work  was  properly  done,  but  not  within  the 
stipulated  time,  he  is  entitled  to  the  full  compensation  after  deduct- 
ing damages  for  loss  occasioned  by  the  delay.**  If  the  bailee  has 
departed  from  the  contract,  by  doing  a  superior  quality  of  work 
or  using  better  materials,  he  can  recover  no  added  compensation, 
unless  the  departure  was  by  the  consent  or  acquiescence  of  the 
bailor,  when  he  may  recover  the  original  contract  compensation 
and  on  the  quantum  meruit  for  the  additional  services.*^  If  the 
employer  has  assented  that  the  work  be  left  incomplete,  or  with 
full  knowledge  has  accepted  defective  work,  which  must  be  shown 
by  his  doing  more  than  merely  taking  back  his  property,  under 
some  circumstances  the  worlonan  may  recover  full  compensa- 
tion.*« 

l/"^     §  94.     Bailee's  lien  for  the   amount  of  compensation. — 

The  general  rule  is  that  every  bailee  for  hire  who  performs  serv- 
ices upon  or  about  the  personal  goods  for  another  has  a  lien 
thereon  for  a  reasonable  compensation.*^  And  this  includes 
mechanics,  artisans,  tradesmen  or  laborers  who  receive  property 

«Higman  v.  Camody,  112  Ala.  267,  (N.  Y.)  392;  Dubois  v.  Delaware  & 

20  So.  480,  57  Am.  St.  ZZ;  Jones  v.  H.  Canal  Co.,  4  Wend.  (N.  Y.)  285. 

Foreman,  93  Iowa  198,  61  N.  W.  846;  «1   Bell  Comm.    (7th  ed.)    p.  455 

McKibben    v.    Bakers,     1    B.     Mon.  Lovelock  v.  King,  1  Moody  &  R.  60 

(Ky.)   120;  Dale  v.  See,  51  N.  J.  L.  Robson   v.   Godfrey.    1    Starkie   220 

378,  18  Atl.  306,  5  L.  R.  A.  583,  14  Pepper  v.  Burland,  Peake  (1790-1794) 

Am.  St.  688;   Mack  v.  Snell,  140  N.  103;   Wilmot  v.   Smith,  3  Car.   &   P. 

Y.    193,   35    N.    E.   493,    Z1   Am.    St.  453;    Bank   of    Columbia    v.    Patter- 

534;   May  v.  Gunther,  20  Misc.    (N.  son's  Admr.,  7  Cranch   (U.  S.)   299, 

Y.)  659,  46  N.  Y.  S.  379.  3  L.  ed.  351. 

*^Taft  V.  Montague,  14  Mass.  282;  '"'Burn    v.    Miller,    4    Taunt.  745; 

Jewell    V.    Schroeppel,    4    Cow.    (N.  Linningdale  v.  Livingston,  10  Johns. 

Y.)  564;  Feeter  v.  Heath,  11  Wend.  (N.  Y.)   16;  Dubois  v.  Delaware  & 

(N.  Y.)   477;  Hillyard  v.  Crabtree's  H.  Canal  Co.,  4  Wend.  (N.  Y.)  285; 

Admr.,    11    Tex.   264,   62    Am.    Dec.  Hollinsead  v.  Mactier,  13  Wend.  (N. 

475.  Y.)  276. 

**  Jewell  V.  Schroeppel,  4  Cow.  (N.  ^'Hale  Bailments,  p.  222;  Van  Zile 

Y.)   564;   Philips  v.   Rose,  8  Johns.  Bailments    (2d   ed.),   §   159;   Wilson 

V.  Martin,  40  N.  H.  88. 


96  BAILMENTS. 

to  repair  or  clean,  or  otherwise  work  upon/^  also  warehousemen, 
who  merely  keep  goods,*^  and  carriers  who  transport  them.^° 
Formerly,  liens  were  restricted  to  carriers,  innkeepers,  and  the 
like,  who  were  under  obligations  to  receive  goods  for  the  public  f^ 
then  the  artisan  who  had  by  his  labor  enhanced  the  value  of  a 
bailed  chattel  was  allowed  a  lien,®^  and  now  in  most  instances 
where  a  bailee  is  hired  to  perform  services  upon  the  chattel  he  is 
held  to  have  a  lien,  though  the  general  statement  that  the  article 
must  have  been  enhanced  in  value  or  there  is  no  lien  seems  scarce- 
ly applicable  to  a  warehouseman.^^  In  fact,  it  seems  that  the 
right  of  a  bailee  to  demand  compensation  for  services  carries  the 
right  to  secure  that  compensation  by  a  particular  lien  upon  the 
property/*  Yet,  at  common  law,  a  livery  stable  keeper  or  agister 
has  no  lien  upon  an  animal  for  its  keep,^^  but  in  most  states  such 
a  lien  is  given  by  statute.^*^ 

The  lien  in  bailments  of  hiring  is  particular,  upon  the  par- 
ticular goods  for  the  particular  services  rendered,  and  not 
a  general  lien  upon  any  goods  of  the  bailor  for  any  amounts 
owing  to  the  bailee.^^  Since  a  lien  is  merely  a  right  to  re- 
tain possession  of  another's  property  until  some  charge  there- 
on is  paid,  it  follows  that  the  lien  is  lost  when  possession  is 
lost,  unless  possession  is  surrendered  through  fraud  or  mistake, 
and  a  lien  once  lost  cannot  be  restored  by  restored  possession.^*' 
And  as  the  lien  is  personal  in  nature,  and  dependent  upon  posses- 
sion, it  cannot  be  assigned,  for  when  possession  is  surrendered  to 

*'Cowper    V.    Andrews,    Hob.    39;  Woodruff,    124    Mass.    205,    26    Am. 

Case  of  an  Hostler,  Yel.  66;  Oakes  V.  Rep.   658;    Grinnell   v.    Cook,   3   Hill 

Moore.  24   Maine  214,  41   Am.  Dec.  (N.  Y.)  485,  38  Am.  Dec.  663. 

379;  Grinnell  v.  Cook,  3  Hill  (N.  Y.)  ^Hale  Bailments,  p.  224;  Van  Zile 

485,  38  Am.  Dec.  663.  Bailments    (2d   ed.),  §   162. 

*'See  §  101,  infra.  "Green  v.   Farmer,   4  Burr.   2214; 

•'"See  §§  121  et  seq.  Miller  v.  Marston,  35  Maine  153,  56 

"Wilson  V.  Martin,  40  N.  H.  88.  Am.  Dec.  694;  Mathias  v.  Sellers,  86 

"Story  Bailments  (9th  ed.),  §  453a;  Pa.  St.  486,  27  Am.  Rep.  723;  Moul- 

Hale    Bailments,    p.    223;    Van    Zile  ton    v.    Greene,    10    R.    I.    330.     But 

Bailments   (2d  ed.),  §  159.  where   an   artisan    received   skins    to 

'"■Hale    Bailments,    p.    224;    Story  be  worked  up  into  garments,  he  may 

Bailments  (9th  ed.),  §  453a.  hold  the  residue  of  any  given  lot  for 

"  Schouler    Bailments    (3d   ed.),    §  the  wliole  sum  due  on  any  particular 

122.  lot.     In  re  Lindau,  183  Fed.  608. 

■^  Jackson    v.    Cummins,    5    M.    &  "^  Holderman    v.    Manier,    104    Ind. 

W.  342;  Miller  v.  Marston,  35  Maine  118,  3  N.  E.  811;  Nevan  v.  Roup,  8 
153,    56    Am.    Dec.    694;    Harris    v. 


HIRING    SERVICES    ABOUT    A    THING.  97 

an  assignee,  the  lien  is  lost.°"  This  is  one  reason  why  a  livery 
stable  keeper  was  not  considered  to  have  a  lien  at  common  law, 
since  the  owner  of  the  horse  was  constantly  taking  the  horse  into 
his  possession  for  use,  thus  interrupting  the  bailee's  possession.'"' 
If  the  bailment  is  made  without  the  consent  of  the  owner,  the 
bailee  has  no  lien  as  against  him.*'^  A  subcontractor  or  sen^ant 
employed  by  the  bailee  has  no  lien  for  there  is  no  privity  between 
him  and  the  bailor.*^"  The  whole  lien  extends  to  every  part  of  the 
goods  embraced  in  one  contract  of  bailment,  and  no  part  of  it  is 
lost  by  the  deliveiy  up  of  part  of  the  property,  the  lien  being  re- 
leased as  to  the  property  delivered,  but  the  whole  lien  attaching  to 
the  part  retained  in  the  bailee's  possession.*'^  Under  the  common 
law,  the  bailee  for  hire  has  no  power  of  sale  to  satisfy  his  lien, 
and  has  merely  the  right  to  retain  possession  of  the  goods  until 
'his  demands  are  satisfied,  unless  given  a  power  of  sale  by  contract 
or  statute,  and  if  such  a  remedy  is  given  by  statute,  the  statute 
must  be  complied  with  strictly,  being  in  derogation  of  the  com- 
mon law.***  The  lien  is  terminated  by  payment  of  the  debt,"' 
by  loss  of  possession  of  the  property,®^  or  may  be  waived  by  acts 
of  the  bailee  inconsistent  with  the  existence  of  a  lien,**^  and  an 
agreement  to  give  credit,  or  a  special  contract  for  a  method  of 
payment  inconsistent  with  a  lien,  is  held  a  waiver.''^ 

Iowa  207;   In   re  Merrick,  91   Mich.  Jacobs  v.  Knapp,  50  N.  H.  71;  Gross 

342,  51  N.  W.  890;  Danzer  v.  Nathan,  v.  Eiden,  53  Wis.  543,  11  N.  W.  9. 
145   App.   Div.    (N.   Y.)   448,   129  N.        ''In  re  Lindau.  183  Fed.  608;  New 

Y.  S.  966;  McDougall  v.  Crapon,  95  Haven     &     Northhampton      Co.     v. 

N.  Car.  292;  Kitteridge  v.  Freeman,  Campbell,  128  Mass.  104.  35  Am.  Rep. 

48  Vt.  62.     Artisan's  lien  on  silk  for  360;  Schmidt  v.  Blood.  9  Wend.  (N. 

work  done  thereon  ceases  when  silk  Y.)    268;   Morgan  v.   Congdon,  4  N. 

repasses    into   bailor's   hands.     Dela-  Y.  552;  Solomon  v.  Bok,  49  Misc.  (N. 

ware.  L.  &  W.  R.  Co.  v.  David   (N.  Y.)  493.  98  N.  Y.  S.  838;  Hensel  v. 

J.),  82  Atl.  516.  Noble,  95  Pa.   St.  345,  40  Am.  Rep. 

''Van   Zile   Bailments    (2d  ed.),   §  659. 
72 ;  Robinson  v.  Larrabee,  63  Maine        "  1  Jones  Liens,  §  1033 ;  Hale  Bail- 

116;   Morse  v.  Androscoggin  R.  Co.,  ments,  p.  234;  Lickbarrow  v.  Mason, 

39  Maine  285;   Stickney  v.  Allen,  10  6  East  21;  Doane  v.  Russell.  3  Gray 

Gray     (Mass.)     352;     Kitteridge     v.  (Mass.)    382;    Busfield    v.    Wheeler, 

Freeman,  48  Vt.  62.  14  Allen  (Mass.)   139. 

•"  Hale  Bailments,  p.  225.  "  See  note  47  et  seq. 

"Clark    V.    Hale.    34    Conn.    398;        *' See  cases  cited  in  note  58. 
Hanch  v.  Ripley,  127  Ind.  151,  26  N.        *' Alabama  Cotton  Oil  Co.  v.  Wee 

E.  70.  11  L.  R.  A.  61;  Globe  Works  den,  150  Ala.  587,  43  So.  926;  Brack- 

V    Wright,   106  Mass.  207;   White  v.  ett  v.  Pierson,  114  App.  Div.  (N.  Y.) 

Smith.  44  N.  J.  L.  105;  Hill  v.  Biir-  281,  99  N.  Y.   S.  770.  ^ 

gess,  n  S.  Car.  604,  15  S.  E.  963.  '« HaT^'    v.     Barrett.    26    111.     195 ;  ^ 

"n  Jones  Liens,  §§   721,  737,  738;  Tucker  v.  Taylor,  53  Ind.  93;   Rob- 
Bailments — 7 


^ 


98  BAILMENTS. 

The  priority  of  the  lien  of  the  bailee  who  works  upon  a  chattel 
depends  entirely  upon  the  circumstances  of  the  contract  of  bail- 
ment. The  general  rule  is  that  such  a  lien  is  inferior  to  a  mort- 
gage recorded  prior  to  the  bailment  for  work.^^  But  it  seems  that 
a  workman's  lien  for  repairs  necessary  to  preserve  a  chattel  may 
be  superior  to  the  rights  of  a  mortgagee,  whose  mortgage  is  of 
record,  as  where  a  workman  who  repaired  a  canal-boat  which  had 
sunk  and  which  would  have  been  useless  without  repair  was  held 
to  have  a  lien  for  such  services  prior  to  the  rights  of  the  mort- 
gagee.'* 

inson    v.    Larrabee,    63    Maine    116;  McGhee  v.  Edwards,  87  Tenn.  506,  11 

Morrill  V.  Merrill,  64  N.  H.  71,  6  Atl.  S.  W.  316,  3  L.  R.  A.  654. 
602;  Bailey  v.  Adams,  14  Wend.  (N.        '"Williams  v.  Allsup,  10  C  B.   (N. 

Y.)  201;  Murphy  v.  Lippe,  35  N.  Y.  S.)  417;  Hammond  v.  Danielson,  126 

Super.  Ct.  542.  Mass.    294;    Scott    v.    Delahunt,    5 

"•Bissell  V.  Pearce,  28  N.  Y.  252;  Lans.  372,  65  N.  Y.  128. 


v^ 


CHAPTER  VI. 

CONTRACTS  OF  HIRING THE  CUSTODY  OF  A  THING. 

§    95.  Bailments   of  hired   custody.      §  101.  Further  of  the  warehousing 

96.  Warehouseman    defined  relationship  —  Warehouse- 

— Public  and  private  ware-  man's  lien. 

houseman.  102.  Redelivery— Presumption    in 

97.  Delivery     and     acceptance—  case  of  injury  of  relation. 

Commencement    of    liabil-  case   of    injury   to  goods — 

ity.  Termination  of   relation. 

98.  Warehouse      receipts — Their         103.  Wharfingers. 

effect  and  assignability.  104.  Factors      and      commission 

99.  Warehouse  receipt  as  a  con-  merchants. 

tract — Its    effect    in    limit-         105.  Safe-deposit  companies, 
ing  liability.  106.  Public  officers  as  bailees. 

100.  Duties      and      liabilities     of         107.  Other  bailments  for  custody 
warehouseman.  —   Agisters      and      livery 

stable  keepers. 

§  95.  Bailments  of  hired  custody. — The  only  real  distinc- 
tion between  bailments  for  the  custody  of  chattels  and  bailments 
of  chattels  for  work  thereupon  is  usually  in  the  character  of 
services  rendered.  All  the  general  principles  of  bailments  apply 
to  these  contracts  as  well  as  to  other  bailments  for  hire.  We 
shall  proceed  to  note  some  of  the  special  applications  of  these 
principles  to  the  relationship  of  custodian,  in  so  far  as  these  appli- 
cations are  peculiar.  First  will  be  considered  warehousemen,  in- 
cluding storage-house  keepers,  elevators,  and  common  carriers 
when  holding  goods  in  storage;  next,  wharfingers,  factors,  and 
forwarders,  safe-deposit  bailees,  and  other  custodians,  such  as 
public  officers. 

§  96.  Warehouseman  defined — Public  and  private  ware- 
housemen.— A  warehouseman  is  one  who,  as  a  business,  re- 
ceives the  goods  and  merchandise  of  others  to  be  stored  in  his 
warehouse  for  hire.^     By  statute  in  some  of  the  states  certain 

^For  other  definitions  see  Bouvier  506,  52  N.   E.  742,   citing  Bucher  v. 

Law.    Diet.;    Goddard    Bailments,    §  Commonwealth,     103     Pa.     St.     528; 

150;  Van  Zile  Bailments   (2d  ed.),  §  Moors  v.  Jagode,  195  Pa.  St.  163,  45 

167;  Snydacker  v.  Blatchley,  177  111.  .Atl.    723.     For   discussion   of    ware- 

99 


lOO  BAILMENTS. 

classes  of  warehousemen,  especially  the  owners  of  grain  elevators, 
are  made  public  warehousemen,  under  the  obligation  to  store  for 
all  who  may  apply,  in  a  manner  analogous  to  the  obligation  of 
the  innkeeper  or  carrier,  but  as  a  rule  warehouses  are  not  public, 
and  the  owner  is  under  no  obligation  to  receive  goods  for  all." 
Bonded  warehouses  are  those  designated  by  the  United  States 
government  for  the  reception  and  storage  of  imports  until  duties 
have  been  paid,  and  they  are  held  to  be  private  warehouses." 

§  97.  Delivery  and  acceptance — Commencement  of  lia- 
bility.— It  is  generally  necessary  that  the  property  should  be 
in  the  possession  of  the  warehouseman  and  under  his  control  in 
order  that  he  shall  be  held  for  the  care  of  the  goods,  but  it 
is  not  necessary  that  the  property  should  have  been  stored  away 
first*  It  is  held  that  his  liability  begins  as  soon  as  the  warehouse 
crane  has  been  attached  to  the  goods,^  and  it  is  settled  that  if  the 
warehouseman  has  consented  to  take  charge  of  goods  before  they 
reach  the  warehouse,  he  is  liable  from  that  moment.®  It  follows 
that  if  there  is  no  delivery  and  no  acceptance,  actual  or  con- 
structive, the  warehouseman  is  not  bound.  The  question  as  to 
whether  the  delivery  of  goods  to  a  warehouseman  constitutes 

housemen's    liability   as    bailees,    see  '  Macklin  v.  Frasier,  9  Bush  (Ky.) 
notes,  136  Am.  St.  226,  6  L.  R.  A.  857,  3;  Claflin  v.  Meyer,  75  N.  Y.  260,  31 
7  L.  R.  A.  529.    The  keeper  of  a  cot-  Am.  Rep.  467;  Fairfax  v.  N.  Y.  Cen- 
ton  yard  who  receives  compensation  tral  R.  Co.,  (H  N.  Y.  11. 
•for  weighing  and  hauling  each  bale  *  Delaware,  L.  &  W.  R.  Co.  v.  Cen- 
and  is  accustomed  to  keep  the  cotton  tral  Stockyard  Co.,  45  N.  J.  Eq.  50, 
in  the  yard  between  the  time  of  haul-  17   Atl.    146,   6   L.    R.    A.   855,   affd. 
ing  and  weighing,  is  a  custodian  for  46  N.  J.  Eq.  280,  19  Atl.  185;  Tits- 
hire,  though  he  receives  no  compen-  worth  v.  Winnegar,  51  Barb.  (N.  Y.) 
./  sation  for  the  actual  storage.     Vogel  148;  Rodgers  v.  Stophel,  Z2  Pa.  Sl 
/   V.  Braudrick,  25  Okla.  259,  105  Pac.  Ill,  12  Am.  Dec.  775;  Blin  v.  Mayo, 
'       197  10  Vt.  56,  Zl  Am.  Dec.  155. 

'Goddard    Bailments,    §    149;    Van  "^Thomas  v.  Day,  4  Esp.  262;  Jef- 

Zile  Bailments  (2d  ed.),  §  168;  Pon-  fersonville  R.   Co.   v.  White,  6  Bush 

tiac  Nat.  Bank  V.  Langan,  28  111.  App.  (Ky.)    251;    Merritt    v.    Old    Colony 

401;    Nash  v.   Page,  80   Ky.   539,  44  &c.  R.  Co.,  11  Allen  (Mass.)  80;  De 

Am.    Rep.   490;    Delaware   L.    &   W.  Mott  v.  Laraway,  14  Wend.   (N.  Y.) 

&c.    R.    Co.   v.    Central    Stock   Yards  225,  28  Am.  Dec.  523. 

Co.,   45    N.   J.    Eq.    50,    17   Atl.    146,  "  Merritt  v.  Old  Colony  &c.  R.  Co., 

6  L.   R.   A.   855,   affd.  46  N.  J.   Eq.  11  Allen  (Mass.)  80;  Ducker  v.  Bar- 

280,    19  Atl.    185;    Brass  v.    State  of  nett,  5  Mo.  97;  Farrell  v.  Richmond 

North  Dakota.   153  U.   S.  391,  38  L.  &  D.  R.   Co.,   102  N.   Car.  390,  9  S. 

ed.   757,    14   Sup.   Ct.   857;    Munn   v.  E.  302,  3  L.  R.  A.  647,   11   Am.   St. 

Illinois,  94  U.   S.  113.  24  L.  ed.  V ;  760;  Rodgers  v.   Stophel,  32  Pa.   St. 

Ogden   v.   Saunders,   12  Wheat.    (U.  Ill,  72  Am.  Dec.  775. 
S.)  359,  6  L.  ed.  656. 


THE    CUSTODY    OF    A    THING.  Id 

a  bailment  or  a  sale  was  considered  in  a  previous  chapter.^  The 
time  when  the  carrier's  liability  as  such  terminates  and  that  as 
warehouseman  begins  will  be  considered  in  the  discussion  of  car- 
riers.^ 

§  98.  Warehouse  receipts — Their  effect  and  assignabil- 
ity.— Usually  upon  acceptance  of  goods  the  warehouseman 
issues  to  the  owner  a  receipt  describing  the  property,  with  the  date 
of  delivery,  and  the  person  from  whom  received,  while  the  under- 
taking of  the  warehouseman,  the  manner  of  storage  of  the  prop- 
ert}^  the  amount  of  the  charges  and  other  parts  of  the  contract 
are  often  set  out  in  the  receipt.  No  particular  form  is  essential, 
but  a  mere  memorandum  is  sufficient,  if  signed  by  the  warehouse- 
man, to  hold  him  to  the  obligation  to  redeliver  to  the  bailor  or  his 
assignee  the  goods  described.^  Warehouse  receipts  are  regarded  as 
representative  of  the  goods  stored,  and  their  deliveiy  for  the  pur- 
pose of  transferring  the  goods  has  the  same  effect  as  the  delivery 
of  the  property  itself,  but  no  more,  passing  to  the  transferee  or 
assignee  only  the  rights  of  the  transferrer,  for  these  receipts  are 
not  negotiable  in  the  sense  of  negotiable  commercial  paper.^** 
The  warehouse  receipt  stands  in  most  respects  upon  prac- 
tically the  same  footing  in  law  as  the  bill  of  lading  issued 
by  the  carrier."     The  assignment  of  a  receipt  in  the  nature 

'See  §§  20-23,  supra.  bridge,  19  Ohio  St.  419,  2  Am.  Rep. 

*See  Carrier's  liability  as  ware-  408;  National  Union  Bank  of  Read- 
houseman,  infra,  §§  238,  239.  ing  v.   Shearer,  225   Pa.   St.  470.   74 

"Jones  on  Pledges  (2d  ed.),  §  Atl.  351,  17  Am.  &  Eng.  Ann.  Cas. 
298;  National  Union  Bank  V.  Shearer,  664  and  note;  Davis  v.  Bradley,  28 
225  Pa.  470,  74  Atl.  351,  17  Am.  &  Vt.  118,  65  Am.  Dec.  226.  Indorse- 
Eng.  Ann.  Cas.  664;  Harris  v.  Brad-  ment  in  blank  and  unconditional  de- 
ley,  2  Dill.  (U.  S.)  284,  Fed.  Cas.  livery  of  warehouse  receipts  trans- 
No.  6116.  But  a  mere  weighing  tag  is  fers  title  for  valuable  consideration, 
not  a  warehouse  receipt.  Sinsheimer  St.  Anthony  &c.  Elevator  Co.  v. 
V.  Whitely,  111  Cal.  378,  52  Am.  St.  Dawson,  20  N.  Dak.  18.  126  N.  W. 
192.  1013,  Ann.  Cas.  1912B.  1337.    Receipt 

"  State  Bank  of   City  of  N.  Y.  v.  for  cotton   issued  by  a  cotton   com- 

Waterhouse,  70  Conn.  Id,  38  Atl.  904,  press  company  is  not  a  negotiable  in- 

66  Am.  St.  82;  Zellner  v.  Mobley,  84  strument    under    the    law    merchant, 

Ga.   746,   11    S.    E.   402,   20   Am.    St.  and  assignee  of   such  receipt  is  not 

390 ;    Burton   v.    Curyea,   40   111.    320,  a  bailor  to  the  warehouseman  in  the 

89  Am.  Dec.  350;  Broadwell  v.  How-  absence  of  notice  to  the  latter.  Stam- 

ard,   n   111.   305;    DoUiff  v.   Robbins,  ford  Compress  v.  Farmers'  &c.  Bank 

83  Minn.  498,  86  N.  W.  772,  85  Am.  (Tex.),  143  S.  W.  1142. 

St.  466;   Second  Nat.  Bank  v.  Wal-  "See  infra,  §§  148,   149. 


I02  BAILMENTS. 

of  a  warehouse  receipt,  but  issued  by  one  who  is  not  a  ware- 
houseman, is  not  an  effectual  deUvery  of  the  goods  as  against 
the  creditors  of  the  assignor.^-  The  general  rule  holds  that 
the  owner  of  goods  may  assign  or  pledge  his  goods  in  the 
custody  of  a  warehouseman  by  the  indorsement  and  delivery 
of  a  warehouse  receipt  for  the  same,  and  that  such  deliver}^ 
is  equivalent  to  the  delivery  of  the  goods,  but  if  one  who  is  not 
the  owner  of  the  goods  transfers  such  a  receipt,  he  can  transfer 
only  the  right  which  he  had,  and  the  true  owner's  rights  are  not 
diminished/^  And  a  public  warehouseman  can  pledge  his  own 
goods  in  his  own  warehouse  by  delivering  the  warehouse  receipt 
and  retaining  the  goods  in  his  possession."  There  are  some 
cases  holding  to  the  contrary,  but  these  depend  mainly  upon  the 
construction  of  statutes  as  forbidding  such  pledges/^  In  some 
states  statutes  have  made  warehouse  receipts  negotiable,  but  even 
under  these  statutes  it  is  held  that  they  are  not  so  in  the  sense 
of  bills,  notes  and  other  represetitatives  of  money,  but  the  effect 
is  merely  to  provide  that  they  may  be  transferable  by  indorsement 
and  delivery,  and  that  such  deliver}^  is  equivalent  to  a  manual 
delivery  of  the  property/®  However,  under  some  statutes,  the 
bona  fide  transferee  of  the  receipt  has  rights  which  cannot  be 
defeated  by  a  secret  understanding  between  the  warehouseman 

"Sinsheimer   v.   Whitely,    111    Cal.  gers  v.  Hayes),  40  Minn.  182,  41  N. 

378,  52  Am.   St.   192;   Franklin   Nat.  W.  971;  State  of  N.  Dakota  v.  Robb- 

Bank  v.  Whitehead,  149  Ind.  560,  49  Lawrence  Co.,   17   N.   Dak.  257,    115 

N.  E.  592,  39  L.  R.  A.  725,  6Z  Am.  N.  W.  846,  16  L.  R.  A.  (N.  S.)  227, 

St.    302;    Whitaker    v.    Sumner,     20  and  note;   Milliorn  v.  Clow,  42  Ore. 

Pick.      (Mass.)      399;      Tradesman's  169,  70  Pac.  398;  Millhiser  Mfg.  Co. 

Nat.  Bank  v.  Kent  Mfg.  Co.,  186  Pa.  v.  Gallego  jNIills  Co.,  101  Va.  579,  44 

St.  556,  65  Am.  St.  876;  Shepardson  S.  E.  760;  Shephardson  v.  Cary,  29 

V.  Cary,  29  Wis.  34;  Geilfuss  v.  Cor-  Wis.  43. 

rigan,  95  Wis.  651,  70  N.  W.  306,  Z7        "First    Nat.    Bank   v.    Nelson,    38 

L.  R.  A.  166,  60  Am.  St.   143.     See  Ga.  391,  95  Am.  Dec.  400;  Franklin 

Hanover    Nat.    Bank    v.    American  Nat.  Bank  v.  Whitehead,  149  Ind.  560, 

Dock  &  Trust  Co.,  148  N.  Y.  612,  43  49  N.  E.  592,  39  L.  R.  A.  725,  6Z  Am. 

N.  E.  72,  51  Am.   St.  721.  St.   302;    Conrad   v.    Fisher,   2,7   Mo. 

"See  cases  cited  in  note  10.  State  App.  352,  8  L.  R.  A.   147;  Yenni  v. 

Bank  v.  Waterhouse,  70  Conn.  76,  66  AIcNamee,  45  N.  Y.  614. 
Am.  St.  82.  "Commercial    Bank    v.    Hurt,    99 

"  Ferguson   v.    Northern   Bank,    14  Ala.  130,  12  So.  568,  19  L.  R.  A.  701, 

Bush    (Ky.)    555,  29  Am.   Rep.  418;  42  Am.  St.  38;  Canadian  Bank  v.  Mc- 

Cochran  v.  Ripy,  13  Bush  (Ky.)  495;  Crea,   106  111.  281;    First   Nat.   Bank 

Merchants'  Bank  of  Detroit  v.   Hib-  of  Louisville  v.  Bovce,  78  Ky.  42,  39 

bard,  48  Mich.  118,  11  N.  W.  834,  42  Am.  Rep.  198;  Security  Bank  v.  Min- 

Am.    Rep.    465 ;    Eggers    v.    National  neapolis  Cold  Storage  Co.,  55  Minn. 

Bank- of  Commerce  (sub  nomine,  Eg-  107,  56  N.  W.  582. 


THE    CUSTODY   OF    A    THING.  IO3 

and  the  owner."  Transfer  by  mere  delivery  with  the  intent 
to  pass  title  will  pass  all  the  rights  of  the  transferrer/^  The 
assignment  passes  rights  only  to  the  property  actually  stored,  and 
if  it  has  been  incorrectly  described,  as  where  a  receipt  was  given 
purporting  to  cover  fifteen  hundred  barrels  of  Portland  cement, 
and  the  barrels  were  filled  with  a  worthless  material  somewhat  re- 
sembling cement,  the  warehouseman  was  not  liable  to  the  bona 
fide  purchaser  for  the  cement  the  barrels  were  supposed  to  con- 
tain," for  it  is  held  that  the  warehouseman  is  not  bound  to  inspect 
packages  delivered  to  him,  and  is  not  an  insurer  of  their  contents, 
but  the  description  is  for  identification  only,  and  represents  the 
property  as  it  appears  externally  to  be.^°  But  where  the  ware- 
houseman has  negligently  issued  receipts  for  one  kind  of  prop- 
erty, when  he  knew  that  a  different  kind  was  stored,  or  from  the 
nature  of  the  goods,  or  the  ordinary  course  of  business  should 
have  known,  he  is  estopped  from  denying  that  the  property  de- 
scribed in  the  receipt  was  stored,  as  against  an  innocent  trans- 
feree."^ In  all  other  cases  the  holder  of  a  receipt  has  a  right  only 
to  the  goods  actually  delivered,  and  the  warehouseman's  obliga- 
tion is  met  by  their  redelivery.^* 

§  99.  Warehouse  receipt  as  a  contract — Its  effect  in  lim- 
iting liability. — A  warehouse  receipt  issued  by  a  warehouse- 
man and  accepted  by  the  owner  of  goods  stored,  as  containing 
the  terms  and  conditions  upon  which  the  commodity  is  delivered 
and  received,  becomes  the  contract  between  the  parties,  and 
cannot,  ordinarily  at  least,  be  contradicted  or  varied  by  parol." 
But  if  the  receipt  is  silent  as  to  the  terms  of  the  contract,  these 

"Anderson    v.    Portland    Flouring  ^"Dean   v.   Driggs,    137   N.    Y.   274, 

Mills  Co.,  2,7  Ore.  483,  60  Pac.  839,  2>Z  N.  E.  326,  19  L.  R.  A.  302,  2,2,  Am. 

50  L.  R.  A.  235,  82  Am.  St.  771 ;  Na-  St.    721 ;    Hale    v.    Milwaukee    Dock 

tional    Union    Bank    v.    Shearer,    225  Co.,  29  Wis.  482,  9  Am.  Rep.  603. 

Pa.   St.  470.  74  Atl.  351,   17  Am.  &  'Wan  Zile   Bailments    (2d   ed.),   § 

Eng.  Ann  Cas.  664.  174;    Norton   v.   Woodruff.  2   N.   Y. 

^*  Alabama   State   Bank  v.   Barnes,  153;    Hale   v.   Milwaukee   Dock   Co., 

82   Ala.    607,    2    So.    349;    Toner    v.  29  Wis.  482,  9  Am.  Rep.  603. 

Citizens'  State  Bank,  25  Ind.  App.  29,  "  See  citations  in  note  21. 

56  N.  E.  731 ;  Rice  v.  Cutler,  17  Wis.  "  Savage   v.    Salem    Mills    Co.,    48 

351,  84  Am.  Dec.  747.  Ore.   1,  85   Pac.  69,   10  Am.  &  Eng. 

"Dean  v.  Driggs,  137  N.  Y.  274,  2,^  Ann.  Cas.  1065.     See  note,  19  L.  R. 

N.  E.  Z26,  19  L.  R.  A.  302,  33  Am.  A.  304. 
St   721. 


104  BAILMENTS. 

may  be  shown  by  parol,  or  if  the  language  is  ambiguous,  it  may 
be  interpreted  in  the  light  of  circumstances  and  of  custom  or 
usage.'*  The  warehouseman  may  limit  his  liability  by  the  con- 
tract contained  in  the  receipt,  and  the  leading  case  holds  that 
where  a  receipt  was  accepted  containing  the  words  "Loss  or  dam- 
age by  fire,  the  elements,  shrinkage,  leakage,  or  natural  decay, 
at  owner's  risk,"  such  notice  became  a  part  of  the  contract,  and 
the  warehouseman  was  held  not  liable  for  a  great  loss  caused  by 
leakage  of  liquor  stored.^^  The  exemption  from  liability  is  lim- 
ited to  the  excepted  causes,  and  does  not  relieve  the  warehouse- 
man from  his  obligation  to  use  proper  care  and  prudent  diligence 
as  to  the  goods  stored.^^  So  where  the  warehouseman  was 
exempted  from  losses  caused  by  the  "elements,"  it  was  held  that 
this  was  equivalent  to  loss  by  the  acts  of  God,  and  that  a  fire  of 
incendiary  origin  was  not  included  in  the  exception.^'  No  ware- 
houseman may  by  contract  relieve  himself  from  the  conse- 
quences of  his  negligence.^^  It  is  possible,  however,  that  he  may 
limit  the  amount  for  which  he  is  liable,  by  an  express  contract, 
the  provisions  of  which  have  been  fairlv  accepted,  with  notice,  by 
the  bailee.^^ 

°*  Morningstar  v.  Cunningham,   110  Patterson  v.  Wenatchee  Canning  Co., 

Ind.  328,  11  N.  E.  593,  59  Am.  Rep.  53  Wash.  155,  101  Pac.  721,  110  Pac. 

211;   Savage  v.   Salem  Mills  Co.,  48  379;  cases  cited  in  note,  136  Am.  St. 

Ore.   1,  85   Pac.  69,   10  Am,  &  Eng.  248. 
Ann.  Cas.  1065.  '*Van    Toll   v.    South   Eastern   R. 

^'Taussig  V.  Bode,  134  Cal.  260,  66  Co.,  12  C.  B.  (N.  S.)  75,  31  L.  J.  C. 

Pac.  259,  54  L.   R.  A.  774,  86  Am.  P.  241;  Harris  v.  Great  Western  R. 

St.  250.  Co.,    1   Q.   B.   Div.   515,   17   Eng.   R. 

'°Rudell  V.  Grand  Rapids  Cold  (Moak.)  156;  Marks  v.  New  Orleans 
Storage  Co.,  136  Mich.  528,  99  N.  W.  Cold  Storage  Co.,  107  La.  172,  31  So. 
756;  Minnesota  Butter  &  Cheese  Co.  671,  57  L.  R.  A.  271,  90  Am.  St.  285. 
V.  St.  Paul  Cold  Storage  &c.  Co.,  75  Recitals  in  writings  given  by  a  ware- 
Minn.  445,  n  N.  W.  977,  74  Am.  St.  house  company  to  a  bailor  do  not 
515;  Hunter  v.  Baltimore  Packing  relieve  the  company  from  the  con- 
&c.  Co.,  75  Minn.  408,  78  N.  W.  11.  sequences  of  its  own  negligence.     A 

"  Pope  V.  Farmers'  Union  &  Mill-  limitation  in  a  receipt  and  other  writ- 
ing Co.,  130  Cal.  139,  62  Pac.  384,  53  ings  of  the  company's  responsibilities 
L.  R.  A.  673,  80  Am.  St.  87.  to  $50,  unless  a  greater  value  of  the 

^Gulf    Compress    Co.   v.    Harring-  goods  were  known  to  the  company, 

ton,  90  Ark.  256,  119  S.  W.  249,  23  is  binding  on  the  bailor;  and  a  limita- 

L.  R.  A.   (N.  S.)    1205n;  Dieterle  v.  tion     of     liability    to    $50     for    any 

Bekin,     143    Cal.    683,   11   Pac.   664;  "piece"    meant    an    individual    article 

Grenada  Cotton  Compress  Co.  v.  At-  with  separate  identity  at  the  time  of 

kinson,  94  Miss.  93,  47  So.  644;  Col-  .storage,  and  not  a  concealed  portion, 

lins  v.  Burns,  63   N.   Y.   1 ;   Rapp  v.  Rapp  v.  Washington  Storage  &c.  Co., 

Washington     Storage     &c.     Co.,     75  75   Misc.    (N.  Y.)    16,   134  N.   Y.  S. 

Misc.  (N.  Y.)  16,  134  N.  Y.  S.  855;  855. 


THE    CUSTODY    OF    A    THING.  IO5 

§  100.  Duties  and  liabilities  of  warehousemen. — The 
warehouseman  must  comply  with  the  contract  of  storage.^'* 
If  he  has  contracted  to  store  goods  in  a  specified  warehouse 
or  a  particular  place,  and  stores  them  in  a  different  place,  it  is 
at  his  own  risk,  and  he  is  liable  for  their  injury  which  occurs 
even  without  his  own  negligence.^^  He  is  under  the  general  obli- 
gation of  a  bailee  for  mutual  benefit  to  exercise  ordinary  diligence 
in  the  care  of  goods  stored,  and  some  of  the  specific  obligations 
involved  in  this  will  now  be  mentioned.  His  building  must  be  rea- 
sonably and  ordinarily  safe  against  dangers  from  within,  or  haz- 
ards from  without.^-  The  warehouse  must  be  kept  free  from  taint 
or  odor  which  may  injure  certain  classes  of  goods,  as  the  odor 
from  pine  boards  which  damages  eggs  in  a  cold  storage  house.^^ 
He  may  be  negligent  in  the  location  of  the  warehouse,  as  well  as 
its  construction.^*  He  is  not,  however,  liable  for  loss  caused  by 
latent  defect  in  his  building.^^  The  warehouseman  is  not  bound 
to  store  the  goods  in  a  fireproof  building  unless  he  has  expressly 
or  impliedly  contracted  to  do  so,^^  and  is  not  liable  for  loss  of 
goods  by  fire,  unless  such  loss  was  caused  by  his  negligence  or 
want  of  precaution  for  their  safety,  or  that  of  his  employes 

'"Van  Zile  Bailments  (2d  ed.),  §  Kans.  143,  105  Pac.  11,  24  L.  R.  A. 
180;  McRae  v.  Hill,  126  111.  App.  349.  (N.  S.)  1117n;  Cowles  v.  Pointer,  26 
See  cases  cited  in  note  31.  The  ware-  Miss.  253;  Muskogee  Crystal  Ice  Co. 
houseman  may  by  contract  make  him-  v.  Riley  (Okla.),  108  Pac.  629;  God- 
self  an  insurer.  Federal  Chemical  ley  v.  Hagerty,  20  Pa.  St.  387,  59  Am. 
Co.  V.  Green,  33  Ky.  L.  671,  110  S.  Dec.  731;  Moulton  v.  Phillips,  10 
W.  859.  R.  I.  218,  14  Am.  Rep.  663 ;  cases  cited 

"McCurdy  v.  Wallblom  Furniture  in  note,   136  Am.   St.  223. 

&c.    Co.,   94   Minn.   326,    102    N.   W.  '^  Parker  v.  Union  Ice  &  Salt  Co., 

873,  3  Am.  &  Eng.  Ann.  Cas.  468  and  59   Kans.  626,   54   Pac.   672,  68   Am. 

note.     See  also,  Lilley  v.  Doubleday,  St.    383.      See    also.    Smith    v.    Dia- 

7  Q.  B.  Div.  510;  St.  Losky  v.  David-  mond  Ice  and  Storage  Co.,  65  Wash, 

son,  6  Cal.  643;  Bradley  v.  Cunning-  576,   118   Pac.  646,  38  L.   R.   A.    (N. 

ham,   61    Conn.   485,  23   Atl.   932,   15  S.)  994. 

L.  R.  A.  679,  109  Am.  St.  679;  Mc-  '"Barron    v.    Eldredgc,    100    Mass. 

Rae  V.  Hill,  126  111.  App.  349;  Wiley  455,  1  Am.  Rep.  126. 

V.  Locke,  81  Kans.   143.  105  Pac.  11,  '^Moulton  v.  Phillips,  10  R.  I.  218, 

24  L.  R.  A.    (N.  S.)    1117n;  Hudson  14  Am.   Rep.  663. 

V.  Columbian  Transfer  Co.,  137  Mich.  ''Hatchett  v.  Gibson,   13  Ala.  587; 

255,  100  N.  W.  402.  Chicago  &  A.  R.  Co.  v.  Scott.  42  III. 
'^Higman  v.  Camody,  112  Ala.  267,  132;    Clifford    v.    Universal    Storage 

20    So.    480,    57    Am.    St.    33;    Gulf  &c.  Co.,  52  Misc.  (N.  Y.)  595.  102  N. 

Compress  Co.  v.  Harrington,  90  Ark.  Y.  S.  460;  Schmidt  v.  Blood,  9  Wend. 

256,  119  S.  W.  249,  23  L.  R.  A.  (N.  (N.  Y.)  268,  24  Am.  Dec.  143  and 
S.)  1205;  Allen  v.  Somers,  73  Conn,  note;  Vincent  v.  Rather,  31  Tex.  77, 
355,  47  Atl.  653,  52  L.  R.  A.  106n,  84  98  Am.  Dec.  516. 

Am.    St.    158;    Wiley   v.    Locke,    81 


io6 


BAILMENTS. 


within  the  scope  and  course  of  their  employment.^^  The  same 
rule  appHes  to  a  loss  by  theft.^^  For  loss  by  the  act  of  God  or 
overwhelming  force  he  is  not  liable.^®  He  must  use  ordinary 
precautions  to  prevent  loss  from  rats  and  mice/"  but  the  ware- 
houseman who  has  discovered  that  wheat  stored  by  him  is  liable 
to  be  infected  by  weevil,  who  uses  ordinary  precautions  to  prevent 
it,  and  notifies  the  owner  to  remove  the  grain,  is  not  liable  for  loss 
caused  by  the  weevil  getting  into  it/^  A  bailee  of  goods  for 
cold  storage  is  liable  only  for  failure  to  keep  the  room  at  the 
ordinary  cold  storage  temperature,*"  but  one  who  has  held  himself 
out  as  storing  particular  kinds  of  goods  is  under  the  obligation 
to  maintain  the  proper  temperature  for  the  preservation  of  the 
goods.*^  It  has  been  held  that  a  warehouseman  is  not  bound  to 
keep  his  warehouse  frost-proof,  so  that  bulbs  would  not  be 
frozen.**  The  warehouseman  who  stores  explosives  with  other 
goods  is  liable  for  loss  thereby  caused. *°  Under  some  circum- 
stances he  may  become  liable  for  failure  to  provide  watchmen/® 


"Hatchett  v.  Gibson,  13  Ala.  587; 
Gibson  v.  Hatchett,  24  Ala.  201 ;  Rus- 
sell V.  Koehler,  66  111.  459 ;  Drudge  v. 
Leiter,  18  Ind.  App.  694,  49  N.  E. 
34,  63  Am.  St.  359;  Irons  v.  Kentner, 
51  Iowa  88,  50  N.  W.  73,  33  Am. 
Rep.  119;  Yazoo  &c.  R.  Co.  v. 
Hughes.  94  Miss.  242,  47  So.  662.  22 
L.  R.  A.  (N.  S.)  975n;  Fleischman 
V.  Southern  R.  Co.,  76  S.  Car.  237,  56 
S.  E.  974,  9  L.  R.  A.  (N.  S.)  519; 
Vincent  v.  Rather,  31  Tex.  77,  98 
Am.  Dec.  516;  Lancaster  Mills  v. 
Merchant's  Cotton  Press  Co.,  89 
Tenn.  1,  14  S.  W.  317,  24  Am.  St. 
586;  cases  cited  136  Am.  St.  227. 

**Battelle  v.  IMercantile  W.  Co.,  139 
App.  Div.  (N.  Y.)  649,  124  N.  Y.  S. 
135;  Schmidt  v.  Blood,  9  Wend.  (N. 
Y.)  268,  24  Am.  Dec.  143  and  note; 
Claflin  V.  ^leyer,  75  N.  Y.  260,  31 
Am.  Rep.  467;  Hutchinson  v.  United 
States  Exp.  Co.,  63  W.  Va.  128.  59 
S.  E.  949,  14  L.  R.  A.  (N.  S.)  393n; 
note  136  Am.  St.  228-9. 

^'  Abraham  v.  Nunn,  42  Ala.  51 ; 
.Williams  v.  Grant,  1  Conn.  487,  7 
Am.  Dec.  235;  Patten  v.  Baggs,  43 
Ga.  167;  McCranie  v.  Wood,  24  La. 
Ann.  406;  American  Brewing  Assn. 
V.  Talbot,  141  Mo.  674,  42  S.  W.  679, 
64  Am.  St.  538. 


*"Cailiff  V.  Danvers,  1  Peake 
(1790-1794)  114,  3  R.  R.  666;  Lav- 
eroni  v.  Drury.  16  Eng.  L.  &  Eq. 
510,  16  Jur.  1024,  22  L.  J.  Ex.  (N. 
S.)  2;  Taylor  v.  Secrist,  2  Disn. 
(Ohio)  299;  Garrigues  v.  Coxe,  1 
Bin.  (Pa.)  592,  2  Am.  Dec.  493. 

*^Carley  v.  Offutt,  136  Ky.  212,  124 
S.  W.  280,  26  L.  R.  A.  (N.  S.) 
1114n,  136  Am.  St.  207  and  note. 

*^  Allen  V.  Somers,  73  Conn.  355,  47 
Atl.  653,  52  L.  R.  A.  106,  84  Am.  St. 
158. 

"Sutherland  v.  Albany  Cold  Stor- 
age &  W.  Co.,  171  N.  Y.  269,  63  N. 
E.  1100,  89  Am.  St.  815.  See  Town- 
send  V.  Rich,  58  Minn.  559,  60  N.  W. 
545.  See,  generally,  as  to  liability  of 
cold  storage  warehouseman,  note  90 
Am.  St.  295-302. 

"Hallock  V.  Mallett,  13  N.  Y.  St. 
263,  55  N.  Y.  Sup.  Ct.  265. 

"White  V.  Colorado  Cent.  R.  Co., 
3  McCrary  (U.  S.)  559,  Fed.  Gas. 
17543.  Contra,  Collins  v.  Alabama  G. 
S.  R.  Co.,  104  Ala.  390,  16  So.  140. 

*°  Chicago  &  A.  R.  Co.  v.  Scott,  42 
111.  132.  See  Evans  v.  New  York  & 
P.  S.  S.  Co.,  163  Fed.  405;  Derosia 
V.  Winona  &c.  R.  Co.,  18  Minn.  133; 
Batelle  v.  Mercantile  Warehouse  Co., 
139  App.  Div.   (N.  Y.)  649,   124  N. 


THE    CUSTODY   OF    A    THING.  I07 

and  may  sometimes  become  liable  for  failure  to  use  ordinary  dili- 
gence to  remove  goods  from  threatened  danger  from  fire  or 
flood,  if  loss  is  caused  by  such  fire  or  flood,  and  an  ordinarily 
prudent  man  would  have  removed  his  own  goods." 

§  101.  Further  of  the  warehousing  relationship — Ware- 
houseman's lien. — The  warehouseman  may  insure  the  prop- 
erty stored  in  his  own  name,  and  in  case  of  loss  collect  the  whole, 
standing  as  trustee  for  the  owner  for  the  amount  above  his 
claims.*^  He  has  such  a  special  property  that  he  may  protect 
the  goods  by  an  action.*^  The  bailor  is  held  to  the  exercise 
of  good  faith,  and  if  he  offers  for  storage  dangerous  goods  likely 
to  injure  other  goods  stored,  it  is  his  duty  to  inform  the  ware- 
houseman.^" The  warehouseman  has  a  right  to  reasonable  com- 
pensation, usually  determined  by  contract,  or  the  usages  of  the 
business,"  and  has  a  lien  to  secure  this,  similar  to  the  lien  of  any 
other  bailee  for  hire,  it  being  special  and  not  general."  He  is, 
of  course,  liable  for  an  unauthorized  use  of  the  chattels  stored, 
the  same  as  any  other  bailee,^^  and  has  even  been  held  guilty  of 
conversion  for  storing  goods  in  one  building  when  the  contract 
was  to  store  in  another.^*     The  liability  of  common  carriers  as 

Y.  S.  135.    And  compare  Pike  v.  Chi-  "  American  Storage  &  Moving  Co. 

cago,   M.  &  St.   P.   R.   Co.,  40  Wis.  v.   St.    Louis    Transit    Co.,   120   Mo. 

583.  App.  410,  97  S.  W.   184. 

"Macklin     v.     Frazier,     9     Bush  ~Van  Zile  Bailments   (2d  ed.),  §§ 

(Kv.)    3;   H.   A.   Johnson   &   Co.   v.  181,   182. 

Springfield  Ice  &c.  Co.,  143  Mo.  App.  "Van   Zile  Bailments    (2d  ed.),   § 

441,    127    S.   W.   692;    Prince   v.    St.  213.     See  cases  cited  in  note  52.    In 

Louis  Cotton  Compress  Co.,  112  Mo.  absence  of  agreement  bailee  for  stor- 

App.  49,  86  S.  W.  873.  age  may  charge  reasonable  value  for 

■^Baxter  v.  Hartford  Fire  Ins.  Co.,  his  services.     Schroeder  v.  Mauzy,  16 

12  Fed.  481.   11   Biss.    (U.    S.)    306;  Cal.  App.  443,  118  Pac.  459. 

Hough  V.  People's  Fire  Ins.  Co.,  36  ^'Reebie  v.  Brackett,  109  111.  App. 

Md.    398;    Lancaster    Mills    v.    Mer-  631;  Kaufman  v.  Leonard.  139  Mich, 

chants'  Cotton-Press  Co.,  89  Tenn.  1,  104,    102   N.   W.  632;    Reidenbach  v. 

14  S.  W.  317,  24  Am.  St.  586;  Home  Tuck,  88  N.  Y.   S.  366;   Schmidt  v. 

Ins.  Co.  v.  Bahimore  Warehouse  Co.,  Blood,  9  Wend.  (N.  Y.)  268.  24  Am. 

93  U.  S.  527,  23  L.  ed.  868.     Under  Dec.    143n ;    Steinman   v.   Wilkins,   7 

certain  circumstances  it  may  become  Watts  and  S.  (Pa.)  466,  42  Am.  Dec. 

the  duty  of  the  warehouseman  to  in-  254. 

sure     in    the    exercise    of    ordinary  '^'Hall    v.    Pillsbury,    43    Minn.    33, 

diligence,  though  the  rule  is  that  he  44  N.  W.  673,  7  L.  R.  A.  529.  19  Am. 

is   not    liable    for    failure    to    insure.  St.  209;  DolHff  v.  Robbins,  83  Mmn. 

Lancaster  Mills  v.  Merchants'  Cotton-  498,  86  N.   W.  112,  85  Am.   St.  466. 

Press  Co.,  89  Tenn.  1,  14  S.  W.  317,  ^  McCurdy     v.     Wallblom     Furni- 

24  Am.  St.  586.   See  note  52  L.  R.  A.  ture  &c.  Co.,  94  Minn.  326,  102  N.  W. 

341.  873,  3  Am.  &  Eng.  Ann.  Cas.  468. 


I08  BAILMENTS. 

warehousemen  for  goods  held,  before  transit  is  commenced,  or 
after  transit  is  finished,  will  be  considered  in  the  treatment  of 
carriers.^^ 

§  102.  Redelivery — Presumption  in  case  of  injury  to 
goods — Termination  of  relation. — The  warehouseman  is  un- 
der the  general  duty  to  redeliver  the  goods  stored  to  the  bailor, 
or  to  the  holder  of  the  properly  indorsed  receipt,^®  and  it 
has  been  held  that  he  cannot  require  proof  that  the  bailor  is 
the  owner/ ^  There  is  an  exception  to  the  general  rule  that 
the  identical  goods  stored  must  be  returned,  where  wheat  is 
stored  with  an  elevator-man,  and  mixed  with  other  wheat, 
in  which  case  the  obligation  is  to  return  a  like  amount  of 
wheat  of  the  same  kind  and  quality,  or  where  wheat  is  stored 
to  be  returned  in  flour,  not  necessarily  from  the  same  wheat.^^ 
Since  the  warehouseman  is  liable  only  for  negligence,  or  the 
failure  to  use  ordinary  care,  the  burden  of  proof'  is  at  all 
times  on  the  plaintiff  who  charges  him  with  such  failure,  but 
when  he  has  shown  the  delivery  of  the  goods,  and  that  they  were 
not  redelivered  or  were  injured,  he  has  made  out  a  prima  facie 
case.^*  But  the  warehouseman  has  made  out  his  defense  when  he 
shows  that  the  loss  was  from  a  cause  for  which  he  is  excused, 
as  an  act  of  God,  and  he  cannot  then  be  held  liable  unless  the 
plaintiff  shows  that  the  negligence  of  the  warehouseman  was  a 

"See  subject  of  Carriers,  §§  131,  '^Yockey  v.  Smith,  181  111.  564,  11 

239,  240,  infra.  Am.    St.    286;    Morningstar   v.    Cun- 

~  Alabama  &  T.  R.  R.  Co.  v.  Kidd,  ningham,  110  Ind.  328,  11  N.  E.  593, 

35  Ala.  209;  Babcock  v.  People's  Sav.  59  Am.   Rep.  211;  Drudge  v.  Leiter, 

Bank,    118   Ind.   212,   20   N.   E.   732;  18   Ind.   App.   694,   49   N.   E.   34,   63 

Lichtenhein    v.    Boston    &c.    R.    Co.,  Am.    St.    359;    Hall   v.    Pillsbury,   43 

11    Cush.    (Mass.)    70;   Bank  of   Os-  Minn.  Z2>,   19  Am.   St.  209;   Chase  v. 

wego  V.  Doyle,  91  N.  Y.  12,  43  Am.  Washburn,   1   Ohio   St.   244,  59  Am. 

Rep.  634;  Velsian  v.  Lewis,  15  Ore.  Dec.    623;    Hutchinson    v.    Common- 

539,  3  Am.  St.  184;  Harris  v.  Brad-  wealth,    82    Pa.    St.    572;    Bretz    v. 

ley,  2   Dill.    (U.   S.)    284,   Fed.   Cas.  Diehl,  117  Pa.  St.  589,  11  Atl.  893,  2 

No.   6116.     See   Fifth   Nat.   Bank  v.  Am.   St.  706,     See  cases   cited  in   § 

Providence  Warehouse  Co.,  17  R.  I.  23.  supra. 

112,  20  Atl.  203,  9  L.  R.  A.  260,  as  to  "=' Parry  v.  Squair,  79  111.  App.  324; 

liability  of  warehouseman   who  sur-  Claflin  v.  Meyer,  75  N.  Y.  260,  31  Am. 

renders  goods  without  production  of  Rep.  467;  Lynch  v.  Kluber,  20  Misc. 

receipt,    when    contract    was    to    de-  (N.    Y.)    601,    46    N.    Y.    S.    428; 

liver  only  on  surrender.  Schmidt  v.  Blood,  9  Wend.    (N.  Y.) 

"McCafferty  v.  Bradv,  5  Sad.  (Pa.)  268,  24  Am.  Dec.  143n. 
565  (unof.),  9  Atl.  11,  19  Wkly.  Notes 
Cas.  553. 


THE    CUSTODY   OF    A    THING  lOQ 

contributing  cause  of  the  loss.*'"  The  relationship  is  temiinated 
by  redelivery,  and  it  is  held  that  when  grain  reaches  the  spout 
in  the  control  of  the  bailee  or  his  agent,  carrying  it  from  the  ele- 
vator, the  relationship  is  ended.^^  The  warehouseman  is  liable 
in  trover  for  misdelivery.*'^ 

§  103.  Wharfingers. — Wharfingers  maintain  wharves  for 
the  purpose  of  receiving  goods  for  hire,  either  from  shippers  who 
desire  to  forward  them  by  vessels,  or  from  the  vessel  upon  dis- 
charge of  its  cargo.  The  duties  of  a  wharfinger  are  practically 
the  same  as  those  of  a  warehouseman.  He  is  held  to  ordinary  dili- 
gence in  caring  for  the  goods.®^  His  liability  begins  when  the 
goods  are  delivered  to  him  or  upon  his  wharf,  and  he  has  notice  of 
such  delivery,^*  and  ends  when  he  ceases  to  have  control  of  the 
property,  and  has  delivered  it  to  the  person  for  whom  it  was  in- 
tended.^^  Usage  may  very  largely  enter  into  the  obligation  of  the 
wharfinger,"^  and,  in  the  absence  of  contract,  his  compensation  is 
determined  by  the  customary  charge,  if  reasonable.*'^ 

§  104.  Factors  and  commission  merchants. — Factors  or 
commission  merchants  are  those  who  make  it  a  business  to  receive 
the  goods  of  others  and  sell  them  upon  commission.  Though 
they  are  to  a  certain  extent  the  agents  of  the  owner,  yet  they  are 

*"  Taussig  V.  Bode,  134  Cal.  260,  66  Doyle,  91  N.  Y.  32,  43  Am.  Rep.  634 ; 

Pac.  259,  54  L.  R.  A.  774;  Hunter  v.  Collins  v.  Burns,  63  N.  Y.  1. 

Ricke  Bros.,  127  Iowa  108,  102  N.  W.  "^  Cox  v.  O'Rily,  4  Ind.  368,  58  Am. 

826;    Marks    v.    New    Orleans    Cold  Dec.   633;    Garfield   &c.    Coal    Co.   v. 

Storage  Co.,  107  La.  172,  31  So.  671,  Rockland-Rockport     Lime     Co.,     184 

57   L.    R.   A.   271,  90   Am.    St.   285;  Mass.  60,  67  N.  E.  863,  61  L.  R.  A. 

Knights   V.    Piella,    111    Mich.   9,   69  946,    100    Am.    St.    543;    Schmidt   v. 

N.  W.  92,  66  Am.  St.  375 ;  Shropshire  Blood,    9    Wend.    (N.    Y.)    268,    24 

V.  Sidebottom,  30  Mont.  406,  76  Pac.  Am.  Dec.  143;  Barber  v.  Abendroth, 

941;  Claflin  v.  Meyer,  75  N.  Y.  260,  102    N.    Y.   406,    55    Am.    Rep.    821; 

31  Am.  Rep.  467.     See  cases  cited  in  Blin  v.  Mayo,  10  Vt.  56,  23  Am.  Dec. 

notes,   1   Am.  &  Eng.  Ann.  Cas.  23.  175. 

See    Milwaukee    Mirror    &c.    Co.    v.  **  Packard  v.  Getman,  6  Cowen  (N. 

Chicago   &c.    R.    Co.,    148   Wis.    173,  Y.)    757,    16  Am.   Dec.   475;    Blin   v. 

134  N.  W.  379.  Mayo,  10  Vt.  56,  33  Am.  Dec.  175. 

''De  Mott  V.  Laraway,   14  Wend.  ""Cobban  v.  Downe,  5  Esp.  41. 

(N.  Y.)  225,  28  Am.  Dec.  523;  The  "'Cobban    v.    Downe,    5    Esp.    41; 

R.  G.  Winslow,  4  Biss.  (U.  S.)  13.  Blin  v.  Mayo,  10  Vt.  56,  33  Am.  Dec. 

"=  Alabama  &  T.  R.  Co.  v.  Kidd,  35  175. 

Ala.    209;    Jeffersonville    R.    Co.    v.  ''Riddick  v.  Dunn,  145  N.  Car.  31, 

White,  6  Bush    (Ky.)   251;  Lichten-  58  S.  E.   1091,  13  Am.  &  Eng.  Ann. 

hein  v.  Boston  &  P.  R.  Co.,  11  Cush.  Cas.  382,  and  cases  cited  in  note. 
(Mass.)     70;     Bank    of    Oswego   v. 


I  lO  BAILMENTS. 

bailees,  since  they  have  the  possession  of  the  goods,  and  they  are 
held  to  use  the  diligence  of  warehousemen  in  caring  for  the 
goods. ''^  The  factor  is  also  under  the  obligation  to  use  the  skill 
of  the  ordinary  factor  in  carrying  out  the  purposes  of  the  bail- 
ment, and  it  is  not  enough  that  he  has  exercised  good  faith.^' 
The  factor  is  a  bailee  who  has,  contrary  to  the  general  rule,  a 
general  lien  on  the  goods  in  his  possession  to  secure  a  balance 
of  account  extending  over  more  than  one  transaction,'"  which  he 
loses  by  surrender  of  possession/^  He  is  held  to  the  duty  to 
strictly  follow  the  directions  of  the  employer,'-  and  as  a  general 
rule  cannot  pledge  or  pawn  the  goods,  or  substitute  other  goods 
for  them.'^ 

§  105.  Safe-deposit  companies. — Safe-deposit  companies 
are  those  which  undertake  in  the  usual  course  of  business  to  fur- 
nish for  hire  a  box  or  safe  in  a  burglar-proof  vault,  in  which 
valuable  papers  may  be  kept.  The  company,  though  it  watches 
over  the  vault  in  which  the  boxes  are  kept,  has  not  full  control 
over  the  property,  for  the  depositor  or  his  agent  places  property 
in  the  box  or  removes  it  when  he  pleases.  There  is  in  fact  no 
delivery  to  the  company,  and  the  best  authority  holds  that  the 
relation  thus  created  is  not  a  bailment,  but  is  rather  in  the  nature 
of  the  lease  of  space,  creating  a  landlord  and  tenant  relation.'* 
Yet  the  courts  have  many  times  called  the  relation  a  bailment 
relation.'^     Whatever  the  relation,  it  is  settled  that  the  deposit 

*«Van  Zile  Bailments    (2d   ed.),   §  "Comer  v.  Way,   107  Ala.  300,  19 

193 ;    Goddard     Bailments,     §     157 ;  So.  966,  54  Am.  St.  93 ;  McKenzie  v. 

Jones  Bailments,  §  98  et  seq. ;  Story  Hodgkin.    126   Cal.   591,   59   Pac.   36. 

Bailments  (9th  ed.),  §  456;  Coggs  v.  77  Am.  St.  209;  B.  F.  Sturtevant  Co. 

Bernard,  2  Ld.  Raym.  909;  McKenzie  v.   Dugan,    106   Md.   587,    14   Am.   & 

V.  Nevius,  22  Maine  138,  38  Am.  Dec.  Eng.  Ann.  Cas.  675. 

291;  Vincent  v.  Rather,  31  Tex.  77,  '"Commercial     Bank    v.     Hurt,   99 

98  Am.  Dec.  516.  Ala.  130,  12  So.  568,  19  L.  R.  A.  701, 

*"  Story  Bailments  (9th  ed.),  §  395;  42  Am.  St.  38.     The  subject  of  fac- 

Weaver  v.   Poyer,  70  111.  567;  Dun-  tors    and    commission    merchants    is 

bar  V.  Gregg,  44  111.  App.  527.  more  fully  considered  under  the  title 

'"Comer  v.  Way,   107  Ala.  300,   19  Agency. 

So.  966,  54  Am.  St.  93;  Balderston  v.  '*2   Street   Found.   Leg.   Liab.  291, 

Nat.    Rubber    Co.,    18   R.    I.   338,   27  ch.  28;  Van  Zile  Bailments  (2d  ed.), 

Atl.   507,   49  Am.    St.   772.     But   see  §§  195,  196.     Hale  Bailments,  p.  248- 

First  Nat.   Bank  v.   Ege,   109  N.  Y.  9.      See    Gregg   v.    Hilson,   8    Phila. 

120,  16  N.  E.  317,  4  Am.   St.  431.  (Pa.)  91. 

'^Rowland  v.  Dolby,   100  Md.  272,  '^Cussen    v.     Southern    Cal.     Sav. 

59  Atl.  666,  3  Am.  &  Eng.  Ann.  Cas.  Bank,      139     Cal.      534.     65      Pac. 

643.  1099.     85     Am.     St.     221;     Mayer 


THE    CUSTODY   OF    A    THING.  Ill 

company  is  held  to  ordinary  care,  or  diligence  commensurate 
with  the  needs  for  care  and  the  circumstances,  which,  in  such 
cases,  because  of  the  value  of  the  property,  is  a  high  degree  of 
care  and  watchfulness/"  This  has  been  defined  as  the  care  and 
diligence  ordinarily  exercised  by  keepers  of  safe-deposit  vaults 
under  like  circumstances  and  surroundings."  It  seems  that  the 
statement  of  Mr.  Hale  that  safe-deposit  companies  assume,  by 
express  contract,  certain  duties,  which,  in  the  absence  of  express 
contract,  are  imposed  upon  bailees  by  law,  is  in  fact  the  solution 
of  the  difficulty,  for  it  was  not  necessary  in  any  of  the  cases  to 
hold  the  safe-depositary  as  a  bailee  in  order  to  charge  it  with  the 
liability.^^ 

§  106.  Public  officers  as  bailees. — Public  officers  who  have 
charge  of  public  funds  would  seem  in  reality  to  be  bailees  under 
special  obligations,  since  they  have  possession  under  the  duty  to 
keep  for  another,  and  have  no  right  to  use  the  funds.'^  But  in 
most  cases,  the  American  courts  have  held  the  custodian  of  public 
funds  absolutely  liable  as  an  insurer,  though  the  reason  for  this 
may  often  be  found  in  legislative  provision  or  in  the  wording  of 
the  bond  which  the  officer  gives,®"  and  many  cases  hold  that  they 
are  not  bailees,  but  debtors.®^ 

V.     Brensinger,     180     111.     110,     54  ''Hale  Bailments,  p.  250. 

N.  E.  159  and  note,  72  Am.  St.  196n;  "2    Street    Found.    Leg.    Liab.,    p. 

Jones  V.  Morgan,  90  N.  Y.  4,  43  Am.  292,    ch.    28;    Wilson    v.    People,    19 

Rep.  131 ;  Roberts  v.  Stuvvesant  Safe  Colo.    199,  34  Pac.  944,  22  L.   R.  A. 

Deposit  Co.,  123  N.  Y.  57,  25  N.  E.  449n,  41  Am.  St.  243;  United  States 

294,  9  L.  R.  A.  438,  20  Am.  St.  718;  v.  Thomas,  15  Wall.  (U.  S.)  347,  21 

Lockwood   V.    Manhattan    Storage   &  L.  ed.  93. 

Warehouse  Co.,  28  App.  Div.  (N.  Y.)  *"  United    States    v.    Zabriskie,    87 

68,  50  N.  Y.  S.  974;  Safe  Deposit  Co.  Fed.  714;  Ramsay's  Estate  v.  People, 

V.    Pollock,  85   Pa.    St.   391,  27  Am.  197  111.  574,  64  N.  E.  555;  Perley  v. 

Rep.  660.     For  a  recent  case  holding  Muskegon   County,  2)2   Mich.    132,  20 

a  safe  deposit  company  a  bailee  and  Am.  Rep.  637;  Tillinghast  v.  Merrill, 

a  discussion  of  the  rights  of  the  lessee  151  N.  Y.  135.  45  N.  E.  1152,  56  Am. 

and    lessor,    see    National    Safe    De-  St.    612;    Smythe    v.    United    States, 

posit   Co.   V.    Stead,   250   111.   584,  95  188  U.  S.  156,  47  L.  ed.  427;  United 

N.  E.  973,  Ann.  Cas.  1912B.  431  and  States  v.   Prescott,  3  How.   (U.  S.) 

note.  578,  11  L.  ed.  734. 

'*  See  cases  cited  in  note  75.  *'  Adams  v.   Lee,  72   Miss.  281,   16 

"Van    Zile    Bailments   (2d  ed.),  §  So.  243;  United  States  v.  Prescott,  3 

196,  citing  Ray  V.  Bank  of  Kentucky,  How.    (U.    S.)    578,    11    L.   ed.   734; 

10    Bush    (Ky.)    344;    Ouderkirk    v.  Town  of  Cameron  v.  Hicks,  65  W. 

Cent.  Nat.  Bank,   119  N.  Y.  263.  23  Va.  484,  64  S.  E.  832. 
N.  E.  875;  First  Nat.  Bank  v.  Zent, 
39  Ohio  St.  105,  4  Ky.  L.  1013. 


1X2  BAILMENTS. 

§  107.  Other  bailments  for  custody — Agisters  and  livery 
stable  keepers. — An  agister  is  one  who  takes  cattle  or  stock 
of  another  into  his  own  grounds,  to  be  fed  or  pastured  for  hire. 
His  rights  and  liabilities  are  practically  the  same  as  those  of  any 
other  bailee  for  hire,  except  that  at  common  law  he  had  no  lien.^^ 
He  is  held  under  the  duty  to  keep  his  pasture  properly  enclosed,*^ 
and  it  may  be  negligence  to  leave  open  gates,  so  that  stock  may 
stray  away  or  be  stolen,  and  the  agister  becomes  liable  for  the 
loss.**  It  may  also  be  negligence  to  expose  animals  to  danger 
from  the  viciousness  of  other  animals.*^  The  livery  stable 
keeper  who  takes  charge  of  a  horse  or  a  carriage  for  hire  is  not 
an  insurer  of  its  safety,  and  is  bound  to  use  only  ordinary  care.*® 
This  rule  has  been  applied  in  cases  where  a  horse  was  tied  in 
the  ordinary  and  customary  manner,  as  the  owner  had  tied  it 
or  had  seen  it  tied,  and  the  horse  got  loose  and  was  injured  or 
escaped.*^  Officers  who  hold  in  custody  property  taken  upon 
writs  of  execution  or  attachments  may  be  in  some  instances  held 
to  the  obligations  of  the  bailee  for  hire,**  and  such  is  the  case 
where  an  officer  performs  his  duty  for  recompense,  or  where  the 
finder  of  lost  property  has  sought  it  for  a  reward.*^ 

*=  See  §  94  supra.  Dennis  v.  Huyck,  48  Mich.  620,  12  N. 

««  Cecil  V.  Preuch,  4  Mart.  (N.  S.)  W.  878,  42  Am.  Rep.  479. 

(La.)  256,  16  Am.  Dec.  171.  "Bigger  v.  Acree,  87  Ark.  318,  112 

^  Story  Bailments  (9th  ed.),  §  443;  S.  W.  879,  23  L.  R.  A.   (N.  S.)    187 

Jones    Bailments,    §    92 ;    Swann    v.  and  note ;  Lockridge  v.  Fesler,  18  Ky. 

Brown,  6  Jones  (N.  Car.)  150.  L.  469,  Zl  S.  W.  65. 

*^  Smith  V.  Cook,  1  Q.  B.  D.  79.  **  Story  Bailments,  §  620;  Blake  v. 

^Bigger  v.  Acree,  87  Ark.  318,  112  Kimball,  106  Mass.  115;  Cross  v. 
S.  W.  879,  23  L.  R.  A.  (N.  S.)  187  Brown,  41  N.  H.  283;  Aurentz  v. 
and  note;  Hunter  v.  Ricke  Bros.,  127  Porter,  56  Pa.  St.  115;  Bobo  v.  Pat- 
Iowa  108,  102  N.  W.  826;  Weick  v.  ton,  6  Heisk.  (Tenn.)  172,  19  Am. 
Dougherty,  28  Ky.  L.  930.  90  S.  W.  Rep.  593. 

966,  3  L.  R.  A.  (N.  S.)  348  and  note;  *»Cummings   v.   Gann,   52    Pa.    St. 

484. 


CHAPTER  VII. 

INNKEEPERS  AND  THE  POST-OFFICES. 

§  r08.  Innkeepers  as  extraordinary  §  114.  For  what  goods  innkeeper  is 

bailees  for  custody.  liable. 

109.  Who  are  innkeepers.  115.  Limitation   of   liability. 

110.  Who    is    a    guest — Transient  116.  Innkeper's    liability    for    the 

character  of   the   relation-  safety    and    protection    of 

ship.  his   guests. 

HI.  A  guest  must  receive  accom-  117.  Innkeeper's  lien. 

modations    of    the    inn    as  118.  Termination  of  relation, 

such.  119.  Inkeeper      as       ordinary 

112.  Innkeeper's   duty   to   receive  bailee. 

all    comers.  120.  The    post-officel    department 

113.  Innkeeper's  liability  for  the  as  bailee. 

goods  of  his  guests. 

§  108.  Innkeepers  as  extraordinary  bailees  for  custody. — 
The  bailment  relationship  which  we  are  now  about  to  consider  is 
that  of  the  innkeeper  as  the  bailee  for  hire  of  the  goods  of  his 
guest.  The  characteristic  of  this  relationship  which  causes  it  to 
be  classified  as  extraordinary  bailment  is  the  liability  to  which 
the  bailee  is  held,  since  the  innkeeper  is  held  by  the  common  law 
to  be  the  insurer  of  the  safety  of  the  goods  and  chattels  of  the 
traveler,  his  guest,  for  reasons  of  public  policy  originating  in 
mediaeval  times.  Then  travel  was  more  dangerous  than  now ; 
there  might  be  collusion  between  the  innkeeper  and  thieves  or 
robbers,  and  further,  the  traveler  remains  in  one  place  but  a  short 
time,  and  if  he  had  to  go  to  the  trouble  of  proving  the  innkeeper's 
negligence,  he  would  be  liable  to  lose  all  his  rights.  Therefore  it  is 
just  that  he  should  be  protected  by  a  strict  rule.*  Yet  this  strict 
liability  is  fastened  by  the  law  upon  only  certain  individuals  who 
hold  out  accommodations  to  the  public,  and  upon  them  only  in  re- 
gard to  transient  guests,  and  not  as  to  those  who  make  the  inn  or 

*  Street  on  Found.  Leg.  Liab.,  vol.  2,  well  v.   Stephens,   3   Abb.    Prac.    fX. 

ch.  29.  p.  294;  Goddard  Bailments,  §  S.)    (N.  Y.)  26,  2  Daly  (N.  Y.)    15; 

161;  Van  Zile  Bailments   (2d  ed.),  §  Hulett  v.  Swift,  33  N.  Y.  571,  88  Am. 

329.     For  history  of  inns  see  Crom-  Dec.  405. 

Bailments — 8  ^^3 


1 14  BAILMENTS. 

hotel  or  lodging-house  their  home,  so  that  it  becomes  important  to 
determine  who  is  an  innkeeper,  and  who  is  his  guest,  to  ascertain 
where  liability  exists.  Some  eminent  authorities  have  even  gone 
so  far  as  to  doubt  that  the  innkeeper  is  really  a  bailee,  since  the 
guest  and  not  the  innkeeper  is  the  one  who  frequently  has  the 
actual  possession  of  the  former's  goods."  But  the  liability  of  the 
innkeeper  has  always  been  considered  by  text-writers  as  a  part 
of  the  law  of  bailments. 

§  109.  Who  are  innkeepers. — Judge  Cooley  defined  an  inn- 
keeper as  "one  who  holds  himself  out  to  the  public  as  ready  to 
accommodate  all  comers  with  the  conveniences  usually  supplied 
to  travelers  on  their  journeys."^  In  an  English  leading  case  it 
was  said  that  "An  inn  is  a  house,  the  owner  of  which  holds  out 
that  he  will  receive  all  travelers  and  sojourners  who  are  willing 
to  pay  a  price  adequate  to  the  sort  of  accommodation  provided, 
and  who  come  in  a  situation  in  which  they  are  fit  to  be  received."* 
In  an  American  leading  case  the  court  held  an  innkeeper  to  be 
"one  who  holds  himself  out  to  the  public  as  engaged  in  the  busi- 
ness of  keeping  a  house  for  the  lodging  and  entertainment  of 
travelers  and  passengers,  their  horses  and  attendants,  for  rea- 
sonable compensation."^  It  is  not  necessary  that  all  the  conve- 
niences usually  supplied  to  travelers  should  be  supplied  by  a  per- 
son in  order  to  render  him  liable  as  an  innkeeper.  The  propri- 
etor of  a  house  which  furnishes  lodging  only  to  a  traveler,  and 
not  food,  as  in  the  instance  of  a  "European  plan"  hotel,  is  an  inn- 
keeper.^ The  mere  furnishing  of  meals,  as  by  a  restaurant  or 
caf ekeeper,  does  not  make  him  liable  as  an  innkeeper  even  though 
he  may  elsewhere  on  his  premises  be  engaged  as  an  innkeeper.^ 

=  Street  Found.  Leg.  Liab.,  vol.  2,  Co.,  89  Minn.  310,  94  N.  W.  874,  99 

ch.  29.  Am.  St.  S7ln;  Wintermute  v.  Clarke, 

*2  Cooley  Torts   (3d  ed.),  §  1338.  5    Sandf.    (N.    Y.)    243;    Kisten    v. 

*  Thompson  v.  Lacy,  3  B.  &  Aid.  Hildebrand,  9  B.  Mon.   (Ky.)   12,  48 

283.  Am.  Dec.  416. 

"Howth  V.  Franklin,  20  Tex.  798,        'Lewis   v.    Hitchcock,    10   Fed.   4; 

11  Am.  Dec.  218.  Bonner  v.  Welborn,  7  Ga.  296;  Kisten 

'Pinkerton  v.  Woodward,  ZZ  Cal.  v.  Hildebrand,  9  B.  Mon.  (Ky.)  12, 
557,  91  Am.  Dec.  657;  Nelson  v.  48  Am.  Dec.  416;  Willard  v.  Rein- 
Johnson,  104  Minn.  440,  116  N.  W.  hardt,  2  E.  D.  Smith  (N.  Y.)  148; 
828,  17  L.  R.  A.  (N.  S.)  1259  and  Carpenter  v.  Tavlor,  1  Hilt.  (N.  Y.) 
note;  Krohn  v.  Sweeney,  2  Daly  (N.  193.  The  Civil  Rights  Bill,  1  Hughes 
Y.)  200;  Johnson  v.  Chadbourne  Fin.  (U.   S.)    541. 


INNKEEPERS POST-OFFICES.  II5 

One  who  entertains  travelers  occasionally  is  not  an  innkeeper, 
for  there  must  be  a  holding  out  to  the  public,  and  to  some  extent 
a  regular  business  of  accommodating  travelers  for  hire,  so  ordi- 
narily a  farmer  who  entertains  a  traveler  is  not  an  innkeeper." 
One  may  be  an  innkeeper,  however,  and  not  at  all  times  be  open 
to  the  public,  as  in  the  case  of  the  proprietor  of  a  summer  hotel." 
The  distinction  between  boarding-house  and  lodging-house  keep- 
ers and  innkeepers  is  that  the  former  do  not  hold  themselves  out 
as  accommodating  transients,^"  and  do  not  accommodate  the 
public,  but  receive  only  those  whom  they  choose."  An  es- 
tablishment may  be  an  inn  as  to  transient  guests,  but  the 
proprietor  may  hold  the  relationship  of  boarding-house  or 
lodging-house  keeper  to  those  persons  who  make  it  their 
home  or  reside  there  under  special  contracts.^^  And  as  an 
innkeeper  may  not  be  liable  to  all  inmates  of  his  house  as  an 
insurer,  so  a  boarding-house  keeper  may  occasionally  entertain 
transients  without  being  liable  to  them  as  an  innkeeper."  The 
true  test  of  an  innkeeper  is  the  holding  out  to  the  public  to 
receive,  for  compensation,  all  transients  who  come  in  a  proper 
condition.^*  By  the  weight  of  authority  a  sleeping-car  company 
is  not  held  to  be  an  innkeeper,^^  some  authorities  giving  as  a 

^Kisten  v.  Hildebrand,  9  B.   Mon.  Johnson  v.   Re^^nolds,   3   Kans.   257; 

(Ky.)   72,  48  Am.  Dec.  416;  Lyon  v.  Vance    v.     Throckmorton,     5     Bush. 

Smith,   Morris    (Iowa)    184;   Cady  v.  (Ky.)   41,  96  Am.  Dec.  ZIJ \  Hall  v. 

McDowell,    1    Lans.     (N.    Y.)    484;  Pike,  100  Mass.  495;  Wiser  v.  Ches- 

Howth  V.  Franklin,  20  Tex.  798,  12>  ley,  53  Mo.  547;  Cross  v.  Wilkins,  43 

Am.  Dec.  218.  N.  H.  332;   Cromwell  v.  Stephens,  3 

•Hale  Bailments,  p.  260;  Holstein  Abb.  Pr.  (N.  S.)    (N.  Y.)  26,  2  Daly 

V.  Phillips,  146  N.  Car.  366,  59  S.  E.  (N.  Y.)  15;  Seward  v.  Seymour,  An- 

1037,    14  L.   R.   A.    (N.    S.)    475,    14  thon  Law  Stud.  51. 
Am.  &  Eng.  Ann.  Cas.  323.  "Kisten  v.  Hildebrand,  9  B.  Mon. 

'"Fay  V.   Pacific   Imp.   Co.,  93   Cal.  (Ky.)  72,  48  Am.  Dec.  416. 
253,  26  Pac.  1099,  28  Pac.  943,  16  L.        "Goddard   Bailments,    §    169;    Fay 

R.  A.  188,  27  Am.  St.  198;  Davis  v.  v.    Pacific   Imp.   Co.,  93   Cal.  253,  26 

Gay,   141   Mass.   531,  6  N.   E.  549.  Pac.   1099  28  Pac.  943,   16  L.  R.  A. 

"Dansey   v.    Richardson,    3    El.    &  188,  27  Am.  St.  198;  Howth  v.  Frank- 

Bl.    144;    Queen   v.    Rymer,   2   Q.   B.  lin,  20  Tex.   798,   IZ   Am.   Dec.   218; 

Div.   136;  Birmingham  R.  &c.  Co.  v.  Pinkerton  v.  Woodward,  ciZ  Cal.  557, 

Drennen  (Ala.),  57  So.  876;  Cady  v.  91  Am.  Dec.  657;  Markham  v.  Brown, 

McDowell,     1    Lans.     (N.   Y.)     484;  8  N.  H.  523,  31  Am.  Dec.  209;  Hou- 

Cromwell  v.  Stephens,  3  Abb.  Pr.  (N.  ser  v.    Tullv.   62   Pa.    St.   ^2,    1    Am. 

S.)    (N.  Y.)  26,  2  Daly  (N.  Y.)   15.  Rep.    390;    Van    Zile    Bailments    (2d 

See  Quigley  v.  Southwick,  135  N.  Y.  ed.),  §  331. 
S.  565.  "  Pullman  Palace-Car  Co.  v.  Smith 

"Pollock  V.  Landis,  36  Iowa  651;  12>  111.  360,  24  Am.  Rep.  258;  Lewis  v. 


Il6  BAILMENTS. 

ground  that  the  sleeping-car  company  does  not  undertake  to  ac- 
commodate the  public,  but  only  a  certain  class,  those  who  have 
first-class  tickets,^^  and  it  is  said  that  the  traveler  is  not  obliged 
to  put  his  goods  into  the  custody  of  the  sleeping-car,  but  may 
remain  in  the  ordinary  car.^^  However,  there  seems  to  be  little 
in  this  distinction,  and  as  said  by  Mr.  Goddard,  every  reason 
for  not  considering  them  as  Innkeepers  save  one  has  been  effectu- 
ally refuted,  and  that  one  *'is  that  the  'peculiar  liability  of  the  inn- 
keeper is  one  of  great  rigor  and  should  not  be  extended  beyond 
its  proper  limits.'  The  difference  between  the  European  hotel 
and  the  modern  compartment  sleeper  is  that  one  is  stationary, 
the  other  on  wheels ;  but  one  is  an  inn,  the  other  is  not."^^  It  is 
generally  held  that  a  steamboat  proprietor  is  not  an  innkeeper 
as  to  its  guests  who  have  staterooms,  for  as  it  is  a  common  car- 
rier, it  cannot  be  subject  to  both  liabilities  at  the  same  time  for  the 
same  property.^® 

§  110.  Who  is  a  guest — Transient  character  of  the  rela- 
tionship.— The  innkeeper  is  held  under  an  extraordinary  lia- 
bility only  to  those  persons  who  are  his  guests,  and  not  to  every 
one  who  comes  under  his  roof.  Perhaps  the  most  satisfactory 
definition  of  guest  is  that  of  Mr.  Hale,  "A  transient  who  patron- 
izes an  inn  as  such,  and  receives  accommodations  with  the  consent 
of  the  innkeeper,  is  a  guest."^**  It  is  to  a  certain  extent  hard  to 
determine  just  who  falls  within  the  classification  as  a  transient. 
The  courts  have  defined  the  transient  as  a  traveler,  a  wayfarer, 
a  temporary  lodger,  a  stranger,  a  temporary  sojourner  whose  stay 
is  precarious  or  uncertain,^^  any  one  away  from  home  receiv* 

New   York   Cent.    Sleeping-Car   Co.,  v.  Burns,  118  Mass.  275,  19  Am.  Rep. 

143  Mass.  267,  9  N.  E.  615,  58  Am.  456.     Compare  Adams  v.  New  Jersey 

Rep.  135;  Woodruff  Sleeping  &  Par-  Steamboat  Co.,  151  N.  Y.  163,  45  N. 

lor  Car  Co.  v.  Diehl,  84  Ind.  474,  43  E.  369,  34  L.  R.  A.  682,  56  Am.  St. 

Am.    Rep.    102;    Blum    v.    Southern  616. 

Pullman  Co.,  1  Flip.  (U.  S.)  500;  '"Hale  Bailments,  §  49.  See  God- 
Pullman  Palace-Car  Co.  v.  Lowe,  28  dard  Bailments,  §  170;  Walling  v. 
Nebr.  239,  44  N.  W.  226,  6  L.  R.  A.  Potter,  35  Conn.  183;  Kisten  v.  Hil- 
809,  26  Am.  St.  325.  debrand.  9  B.  Mon.  (Ky.)  72,  48  Am. 

"Welch  V.  Pullman  Palace-Car  Co.,  Dec.  416;  Curtis  v.  Murphy,  63  Wis. 

16  Abb.  Pr.  (N.  S.)   (N.  Y.)  352.  4,  22  N.  W.  825,  53  Am.  Rep.  242. 

"  Hale   Bailments,   p.   263.  ^  Fay  v.  Pac.  Imp.  Co.,  93  Cal.  253, 

"  Goddard  Bailments,   §   166.  26  Pac.  1099,  28  Pac.  943.  16  L.  R.  A. 

"  Steamboat  Crystal  Palace  v.  Van-  188,   27   Am.    St.    198 ;    Pinkerton    v. 

derpool,  16  B.  Mon.  (Ky.)  302;  Clark  Woodward,  33  Cal.  557,  91  Am.  Dec 


INNKEEPERS POST-OFFICES.  1 1 7 

ing  accommodations  at  an  inn  as  a  traveler.-^  One  who  lives 
permanently  in  a  hotel,  or  makes  it  his  residence,  is  a  boarder 
or  lodger,  and  not  a  transient  guest.^^  It  is  not  necessary  that 
one  should  have  come  from  a  distance  to  be  a  guest,  but  a  towns- 
man or  a  neighbor  may  be  a  traveler  and  a  guest.-*  "Neither 
the  length  of  time  that  a  man  remains  at  an  inn,  nor  any  agree- 
ment he  may  make  as  to  the  price  of  board  per  day  or  per  week, 
deprives  him  of  his  character  as  a  traveler  and  a  guest,  provided 
that  he  retains  his  status  as  a  traveler  in  other  respects,'"-^  and  has 
been  received  and  entertained  as  such  by  the  innkeeper.  Usually 
those  who  receive  special  contract  rates  are  boarders,  and  an 
inhabitant  of  any  place  who  makes  a  special  contract  with  an 
innkeeper  for  board  or  lodgings  is  not  a  guest,-*^  but  a  traveler 
does  not  lose  his  rights  as  a  guest  by  inquiring  in  advance  as 
to  charges,  or  receiving  special  rates.^^  The  distinction  between 
guests  and  lodgers  or  boarders  consists  in  the  impermanent  and 
transitory  character  of  the  former  relation,  and  is  not  dependent 
on  the  length  of  stay,  or  the  contract  for  payment,-^  though  it  has 
been  held  that  one  is  a  boarder  who  contracts  for  a  definite  stay 
of  two  or  three  weeks  at  reduced  rates.^^  In  one  case,  where  the 
wife  and  children  of  the  plaintiff  were  residents  of  a  city  and  re- 
mained part  of  the  time  at  a  hotel,  and  the  plaintiff,  who  was  a 

657;     Russell    v.     Fagan,    7    Houst.  shire  Woolen  Co.  v.  Proctor,  7  Cush. 

(Del.)    389,    8    Atl.    258;    Carter    v.  (Mass.)    417;    Carter   v.    Hobbs,    12 

Hobbs,  12  Mich.  52,  83  Am.  Dec.  762.  Mich.  52,  83  Am.  Dec.  762. 

^  Pullman  Palace-Car  Co.  v.  Lowe,  "  See  cases  cited  in  note  25 ;  Ben- 

28  Nebr.  239,  44  N.  W.  226,  6  L.  R.  net  v.   Mellor,  5   T.   R.  273 ;   Fay  v. 

A.  809,  26  Am.  St.  325.  Pacific    Imp.    Co.,    93    Cal.    253,    26 

''Moore  v.   Long   Beach   Develop-  Pac.   1099,  28  Pac.  943,   16  L.  R.  A. 

ment  Co.,  87  Cal.  483,  26  Pac.  92,  22  188,   27   Am.    St.    198 ;    Pinkerton   v. 

Am.    St.   265 ;    Horner   v.    Harvey,   3  Woodward,  ZZ  Cal.  557,  91  Am.  Dec. 

Gild.    (N.    Mex.)    307,    5    Pac.    329;  657;  Holstein  v.  Phillips,  146  N.  Car. 

Lawrence  v.  Howard,  1  Utah  142.  366,  59  S.  E.   1037,  14  L.  R.  A.   (N. 

"*  Walling  V.  Potter,  35  Conn.  183;  S.)    475,   14  Am.   &  Eng.   Ann.   Cas. 

Hilton  V.  Adams,  71  Maine  19;  Cur-  323. 

tis  V.  Murphy.  63  Wis.  4,  22  N.  W.  ^  See  cases  cited   in  notes  25  and 

825,  %l  Am.   Rep.  242.  27;    Johnson    v.    Reynolds,    3    Kans. 

""  Norcross  v.   Norcross,  53   Maine  257 ;  Vance  v.  Throckmorton.  5  Bush 

163;  Jalie  v.   Cardinal,  35  Wis.   128;  (Ky.)  41,  96  Am.  Dec.  327;  Hancock 

Curtis  V.   Murphy,  63  Wis.  4,  22  N.  v.  Rand,  94  N.  Y.   1 ;   Clute  v.  Wig- 

W.   825,   53   Am.    Rep.   242;    Hall   v.  gins,   14  Johns.    (N.   Y.)    175,  7  Am. 

Pike,    100    Mass.    495;    Ross   v.    Mel-  Dec.   448. 

lin,  Ze  Minn.  421,  32  N.  W.  172.  "-^  Meacham  v.  Galloway,  102  Tenn. 

"» Shoecraf  t  v.  Bailey,  25  Iowa  553 ;  415,  52  S.  W.  859,  46  L.  R.  A.  319, 

Kisten    v.     Hildebrand,    9    B.    Mon.  1Z  Am.  St.  886. 
(Ky.)   n,  48  Am.  Dec.  416;  Berk- 


Il8  BAILMENTS. 

resident  o£  another  state,  came  to  the  hotel  and  remained  there 
four  weeks  under  a  special  contract  at  reduced  rates  for  himself 
and  family,  it  was  held  that  the  plaintiff  was  a  traveler,  and  a 
guest  of  the  hotel,  but  that  his  family  were  boarders,  and  not 
guests.^" 

§111.  A  guest  must  receive  accommodations  of  the  inn 
as  such. — Not  every  person  who  enters  an  inn  is  a  guest. 
One  must  secure  some  accommodations  there  to  become  a  guest, 
procure  a  meal,  room,  drink,  feed  for  his  horse,  or  at  least  offer 
to  buy  something  of  the  innkeeper,  to  create  such  relation.^^  It 
has  been  said  that  it  is  immaterial  how  slight  the  entertainment,  or 
how  temporary  the  use  of  the  inn,  if  the  person  is  there  as  a 
guest.^^  A  neighbor  or  friend  who  comes  at  the  invitation  of  the 
innkeeper  is  not  a  guest,^^  nor  is  one  who  comes  merely  to  visit 
a  guest  of  the  inn,^*  or  merely  to  take  refreshment.^^  But  if  one 
in  the  course  of  a  journey  goes  to  an  inn  for  refreshment,  he  is  a 
guest.^*'  So  under  certain  circumstances  the  purchase  of  liquor 
has  been  held  to  make  one  a  guest.^^  One  who  attends  a  ball  at 
an  inn,  at  the  proprietor's  invitation,  even  though  he  has  supper, 
stables  his  horse,  and  purchases  liquor,  is  not  a  guest,  for  he  is  not 
a  traveler,^^  nor  are  persons  attending  a  club  banquet  in  the  din- 
ing-room of  a  hotel,  at  the  invitation  of  the  club,  guests  of  the  inn, 
even  though  they  had  registered  and  been  assigned  a  room,  though 
this  is  rather  an  extreme  case.^^  One  who  put  his  mule  in 
an  inn-stable  and  intended  to  take  his  dinner  at  the  inn,  and  then 
left  without  any  agreement  with  the  innkeeper  or  his  authorized 
agent,  and  who  was  prevented  from  taking  the  meal  as  he  intend- 

'"Lusk  V.  Belote.  22  Minn.  468.  S.)   442;   Bennet  v.   Mellor,  5  T.  R. 

'^Tulane  Hotel  Co.  v.  Holohan,  112  273;  Curtis  v.  Murphy,  63  Wis.  4,  22 

Tenn.  214.  79  S.  W.  113,  105  Am.  St.  N.  W.  825,  53  Am.   Rep.  242. 

930n  and  cases  cited  in  note.  ^^  Bennett  v.   Mellor,  5   T.   R.  273; 

""Kopper  V.  Willis,  9  Daly  (N.  Y.)  McDonald  v.  Edgerton,  5  Barb.    (N. 

460.  Y.)  560;  Fitch  v.  Casler,  17  Hun  (N. 

**  Bacon  Abr.  Inns  and  Innkeepers,  Y.)  126.    See  Cake  v.  District  of  Co- 

p.  234,  ch.  5.  lumbia,  33  App.  (D.  C)  272,  17  Am. 

**  Gastenhofer  v.  Clair,  10  Daly  (N.  &  Eng.  Ann.   Cas.  814. 

Y.)  265.  ""  Carter  v.  Hobbs,  12  Mich.  52,  83 

^Commonwealth     v.     Moore,     145  Am.   Dec.    762;    Fitch   v.   Casler,    17 

Mass.  244,    13  N.  E.  893;   Common-  Hun    (N.  Y.)    126. 

wealth  V.   Hagan,   140   Mass.  289;  3  ^"Amey   v.    Winchester,   68   N.    H. 

N.  E.  207.  447,  39  Atl.  487,  39  L.  R.  A.  760,  73 

'"Atkinson  v.  Sellers.  5  C.  B.   (N.  Am.  St.  614. 


INNKEEPERS POST-OFFICES.  II9 

ed  by  an  injury  to  the  mule  occurring  in  the  stable,  was  held  not 
a  guest,  and  the  innkeeper  was  not  liable  for  injuries  to  the  mule/" 
A  man  and  woman  who  go  to  a  hotel  and  take  rooms  for  the  pur- 
pose of  engaging  in  illicit  intercourse  are  not  guests.*^  Nor  is 
one  a  guest  who  engages  a  room,  but  does  not  occupy  it  at  the 
time,  his  object  being  to  leave  a  package  of  money  with  the  clerk 
in  a  safe  place.*^  One  who  visits  an  inn  and  merely  leaves  goods 
there,  but  does  not  receive  accommodations,  is  not  a  guest.'*'' 
Those  who  occupy  the  rooms  of  hotels  kept  on  the  European 
plan  are  guests,'**  and  it  was  held  that  one  was  a  guest  who 
took  a  room  but  only  occupied  it  for  the  purpose  of  dressing 
and  shaving,  before  going  to  a  friend's  house,  and  received  no 
other  accommodation  than  the  use  of  the  room  for  a  short  time, 
and  some  hot  water/^  The  innkeeper  is  not  liable  as  to  a  guest, 
nor  even  as  a  gratuitous  bailee,  to  one  who  delivers  his  goods  to 
the  hotel  porter  at  the  station,  intending  to  become  a  guest,  but 
who  changes  his  mind  and  secures  no  accommodation  there, 
though  the  goods  are  lost.**'  But  a  traveler  who  takes  food  with- 
out lodging  is  a  guest. *^  It  seems  that  one  who  is  on  a  journey 
and  stops  at  an  inn  to  secure  food  and  stable  for  his  horse  is  a 
guest,  even  though  he  obtains  no  accommodations  for  himself,'*^ 
and  that  if  one  intending  to  become  a  guest  sends  his  horse  in 
advance,  and  the  innkeeper  receives  him  on  that  understanding, 
he  is  a  guest  from  that  time,*^  but  one  who  sends  his  horse  to  the 
inn  to  be  cared  for,  with  no  intention  of  stopping  there  himself, 

*"  Brewer  v.  Carswell,  132  Ga.  563,  Bernstein  v.  Sweeny,  33  N.  Y.  Super. 

64  S.   E.  674,  23  L.   R.  A.    (N.   S.)  Ct.  271. 

1107  and  note,  131  Am.  St.  216.  ^'Lynar  v.   Mossop,  36  U.  C.    (Q. 

"Curtis  V.  Murphy,  63  Wis.  4,  22  B.)  230. 

N.  W.  825,  53  Am.  Rep.  242.  *'  Tulane    Hotel    Co.    v.    Holohan, 

'==  Arcade    Hotel    Co.    v.   Wiatt,   44  112  Tenn.  214,  79  S.  W.  113,  105  Am. 

Ohio  St.  32,  4  N.  E.  398,  58  Am.  Rep.  St.  930n. 

785.  "^Orchard  v.  Bush,  2  L.  R.  (1898) 

"Toubv.  Schmidt,  60  Hun  (N.Y.)  Q.   B.   284,   78   L.   T.    (N.    S.)    557; 

409,  15  N.  Y.  S.  616.    One  who  sends  Read  v.  Amidon,  41  Vt.  15,  98  Am. 

his  baggage  to  a  hotel  and  goes  there,  Dec.  560. 

but  who  does  no  more  than  sit  and  ''*  Thick.stun  v.   Howard,  8  Blackf. 

write   letters    while    waiting    for    his  (Ind.)     535;     Russell    v.     Pagan,     7 

train,  is  not  a  guest  with  respect  to  Houst.  (Del.)  389,  8  Atl.  258;  Mason 

his  baggage.    Baker  v.  Bailey  (Ark.),  v.    Thompson,  9    Pick.    (Mass.)    280, 

145  S.  W.  532,  39  L.  R.  A.   (N.  S.)  20  Am.  Dec.  471 ;  McDaniels  v.  Rob- 

1085.  inson,  26  Vt.  316,  62  Am.  Dec.  574. 

"Bullock  V.  Adair,  63  111.  App.  30;  **Grinnell  v.  Cook,  3  Hill  (N.  Y.) 

485,  3d  Am.  Dec.  663. 


I20  BAILMENTS. 

or  who  uses  the  stables  of  the  inn  as  a  livery,  acquires  no  rights 
as  a  guest.^" 

The  general  rule  is  that  no  one  can  become  a  guest  with- 
out the  consent  of  the  innkeeper  or  his  authorized  agent/^  and 
the  relation  of  guest  begins  as  soon  as  he  is  accepted,  assent 
sometimes  being  implied,®^  as  for  instance  one  who  goes  to  an 
inn,  gives  his  baggage  to  the  servant  at  the  door,  and,  going 
into  the  dining-room,  is  served  with  food  at  the  customary 
price,  has  been  accepted  as  a  guest,  though  he  has  not  registered, 
and  has  not  notified  any  officer  of  the  hotel  of  his  intentions,  nor 
given  any  directions  as  to  his  baggage.^^  A  hotel  keeper  is  liable 
for  baggage  from  the  time  it  is  delivered  to  his  porter  at  the 
depot,  and  a  check  given  for  it,  even  though  the  porter  has  in 
fact  instructions  to  receive  no  baggage.^*  One  who  patronizes 
a  sea  bathing-house  kept  separately  from  his  inn  by  an  innkeeper 
is  not  a  guest  of  the  inn.^^ 

§  112.  Innkeeper's  duty  to  receive  all  comers. — The  gen- 
eral rule  is  that  the  innkeeper  is  bound  to  receive  and  entertain 
all  who  apply  to  him  for  entertainment  and  tender  the  price  or 
are  able  and  willing  to  pay,  unless  he  has  no  room  in  his  house,'* 
or  the  person  applying  is  disorderly,^'  or  infected  with  con- 
tagious disease,'®  his  duty  in  this  respect  being  very  similar  to 
that  of  a  carrier  of  passengers,  and  for  the  same  reason,  since 

™  Hickman  V.  Thomas,  16  Ala.  666;  "^'Walpert  v.   Bohan,    126  Ga.   532, 

Russell   V.    Fagan,    7    Houst.    (Del.)  55  S.  E.  181,  115  Am.  St.  114;  6  L. 

389,  8  Atl.  258;   Thickstun  v.   How-  R.  A.    (N.  S.)   828n. 

ard,  8  Blackf.   (Ind.)   535;  Healey  V.  '"'Goddard     Bailments,     §§     175-6; 

Gray,  68  Maine  489,  28  Am.  Rep.  80 ;  Rex  v.  Ivens,  7  Car.  &  P.  213 ;  Mark- 

Ingallsbee  v.   Wood.   33   N.   Y.   577;  ham  v.  Brown,  8  N.  H.  523,  31  Am. 

Grinnell  V.  Cook,  3  Hill  (N.  Y.)  485;  Dec.    209;    State    v.    Steele,    106    N. 

38  Am.  Dec.  663.  Car.   766,   11   S.   E.  478,  8  L.   R.  A. 

"Strauss    v.     County    Hotel     and  516,  19  Am.   St.  573. 

Wine  Co.,  12  Q.  B.  D.  27;  Gasten-  ""1    Hawk.    P.    C,    ch.    78,    §    1; 

hofer  V.  Clair,  10  Daly  (N.  Y.)  265.  Thompson  v.  Lacv.  3  B.  &  Aid.  283; 

"■■  Pinkerton  v.   Woodward,  33  Cal.  Rex  v.  Ivens,  7  Car.  &  P.  213 ;  Pink- 

557;  91   Am.    Dec.  657;    Gastenhofer  erton  v.  Woodward,  33  Cal.   557,  91 

V.  Clair,  10  Daly   (N.  Y.)   265;   Mc-  Am.  Dec.  657;    Markham  v.   Brown, 

Daniels  v.   Robinson,  26  Vt.  316,  62  8  N.  H.  523,  31  Am.  Dec.  209;  Com- 

Am.  Dec.  574.  monwealth   v.    Mitchel,   2    Pars.    Eq. 

^Memphis     Hotel     Co.     v.     Hill  Cas.    (Pa.)    431. 

(Tenn.),  136  S.  W.  997,  34  L.  R.  A.  '*See  Van  Zile  Bailments  (2d  ed.), 

(N.  S.)  420  and  note.  §  344;  Gilbert  v.  Hoflfman,  66  Iowa 

"  Coskery  v.  Nagle,  83  Ga.  696,  10  205,  23  N.  W.  632,  55  Am.  Dec.  263. 
S.  E.  491,  6  L.  R.  A.  483,  20  Am. 
St.  333. 


INNKEEPERS POST-OFFICES,  121 

both  occupations  are  affected  with  a  public  interest,  the  one  carry- 
ing travelers,  the  other  entertaining  them  at  places  where  they 
must  stop.  He  is  not  bound  to  admit  one  who  is  not  able  to  pay,°® 
and  of  course  no  one  has  a  right  to  enter  for  an  unlawful  pur- 
pose, as  to  commit  an  assault  upon  a  guest.*'"  It  is  the  general 
rule  that  he  must  admit  all  who  come  to  do  business  with  his 
guests,"  and  especially  is  this  true  when  the  guest  has  sent  for 
some  one  to  see  him  on  business.^-  On  the  other  hand,  he  may 
exclude  one  whose  business  would  injure  him,*'^  and  he  may  ex-. 
elude  loafers,  hack-agents,  solicitors  and  similar  persons  by  his 
regulations.®*  When  he  has  offered  a  guest  reasonable  and  proper 
accommodations,  he  has  fulfilled  his  duty  in  that  respect,^^  and  he 
is  not  bound  to  furnish  one  the  precise  room  he  asks  for.^^  He 
must  receive  the  traveler's  goods  with  him,  and,  if  he  has  a  stable, 
must  care  for  his  horse.*^  The  innkeeper  is  subject  to  an  action 
for  an  improper  refusal  to  receive  a  person  as  a  guest.®^ 

§  113.  Innkeeper's  liability  for  the  goods  of  his  guests. — 
Practically  all  authorities  are  agreed  that  the  innkeeper's  liability 
for  the  goods  of  his  guest  is  an  extraordinary  one,  but  they  do 
not  agree  as  to  the  extent  of  such  liability.  Three  distinct  rules 
are  followed,  and  these  have  been  summed  up  as  follows:®" 
First,  "that  the  innkeeper  is  prima  facie  liable  for  the  loss  of 
goods  in  his  charge;  but  may  discharge  himself  by  showing  that 
the  goods  were  not  lost  by  his  neghgence  or  default;^"  second, 

"» Thompson  v.  Lacy,  3  B.  &  Aid.  «"  Fell  v.  Knight,  8  M.  &  W.  269. 

283;  Pinkerton  v.  Woodward,  33  Cal.  *"  Schouler   Bailments    (3d    ed.).    § 

557,    91    Am.    Dec.    657 ;    Watson    v.  288,  Bac.  Abr.  "Inns  and  Innkeepers," 

Cross,  2  Duv.  (Ky.)  145;  Grinnell  v.  p.  232,  ch.  3. 

Cook,  3   Hill    (N.   Y.)    485,  38  Am.  «« Watson  v.   Cross,  2  Duv.    (Ky.) 

Dec.  663.  147;   McHugh  v.   Schlosser,  159  Pa. 

*"  Markham  v.  Brown,  8  N.  H.  523,  St.  480,  28  Atl.  291,  23  L.  R.  A.  574, 

31  Am.  Dec.  209.  39  Am.  St.  699. 

"'State  V.  Steele.  106  N.  Car.  766,  ■* Sibley  v.  Aldrich,  33  N.  H.  553, 

11  S.  E.  478,  8  L.  R.  A.  516,  19  Am.  66  Am.  Dec.  745.    Generally,  see  note, 

St.   573;    Commonwealth   v.   Mitchel,  99  Am.  St.  577. 

2  Pars.  Eq.  Cas.   (Pa.)   431.  '"Story  Bailments  (9th  ed.),  §  472; 

^  Hale  Bailments,  p.  276.  Dawson  v.  Cholmeley,  D.  &  M.  348.  5 

•^  State  V.  Steele,  106  N.  Car.  766,  Q.  B.   164;   Metcalf  v.   Hess,   14  111. 

11  S.  E.  478,  8  L.  R.  A.  516,  19  Am.  129;  Bowell  v.  De  Wald.  2  Ind.  App. 

St.  573.  303,  28  N.  E.  430,  50  Am.   St.  240; 

** State  V.  Steele,  106  N.  Car.  766,  Hill     v.     Owen,     5     Blackf.     (Ind.) 

11  S.  E.  478,  8  L.  R.  A.  516,  19  Am.  323,  35  Am.   Dec.    124;   Meacham  v. 

St.  573.  Galloway,   102  Tenn.  415,   52   S.   W. 

"'Fell  V.  Knight,  8  M.  &  W.  269.  859,  46  L.  R.  A.  319,  73  Am.  St.  886; 


122  BAILMENTS. 

that  the  innkeeper  is  discharged  by  showing  how  the  accident 
happened,  and  that  it  happened  by  inevitable  accident,  or  irre- 
sistible force,  though  the  accident  might  not  amount  to  what  the 
law  denominates  the  act  of  God  and  the  force  might  not  be  the 
power  of  a  public  enemy  ;'^  third,  that  the  innkeeper  is  liable 
unless  the  loss  was  caused  by  the  act  of  God  or  the  public  enemy, 
or  by  the  fault,  direct  or  implied,  of  the  guest."^^  The  third 
rule  is  the  common-law  rule,  applying  to  the  innkeeper  the  strict 
liability  of  the  insurer,  like  the  common  carrier,  and  is  still  fol- 
lowed in  most  jurisdictions,  but  the  courts  in  some  of  the  states, 
finding  this  rule  harsh,  have  modified  it  by  the  adoption  of  one 
of  the  others.  The  doctrine  holding  him  liable  as  an  insurer 
rested  upon  grounds  of  public  policy  and  originated  in  the  case 
of  Hulett  V.  Swift,'^^  though  it  was  opposed  by  other  decisions 
almost  as  early. '^*  Proceeding  to  particular  instances,  it  seems 
that  the  majority  of  cases  hold  that  the  innkeeper  is  not  liable 
for  loss  by  an  accidental  fire,  if  his  negligence  did  not  contribute 
thereto,^ ^  though  some  decisions  hold  him  to  the  strict  liability 
in  such  cases.'^  It  has  beeii  said  that  in  no  instance  has  an  inn- 
keeper been  held  liable  for  goods  lost  by  robbery  except  where 
he  was  negligent,  but  that  no  reported  case  can  be  found  which 
has  held  an  innkeeper  not  liable,  so  that  the  cases  cannot  be  con- 
sidered to  sustain  the  proposition  that  an  innkeeper  would  be 
liable  for  goods  so  lost,  in  the  absence  of  negligence,'^  and  it 

Howth  V.  Franklin,  20  Tex.  798,  11  "*Cutlei-  v.  Bonney,  30  Mich.  259, 

Am.  Dec.  218.  18  Am.  Rep.  127;  McDaniels  v.  Rob- 

''  Kisten  v.  Hildebrand,  9  B.  Mon.  inson,  26  Vt.  316,  62  Am.  Dec.  574. 

(Ky.)    72,   48  Am.   Dec.   416;   John-  '" Moore  v.   Long   Beach   Develop- 

son   V.    Chadbourn    Finance    Co.,    89  ment  Co.,  87  Cal.  483,  26  Pac.  92,  22 

Minn.  310,  94  N.  W.  874,  99  Am.  St.  Am.   St.  265;   Kisten  v.   Hildebrand, 

571  and  note;  McDaniels  v.  Robinson,  9  B.  Mon.  (Ky.)  72,  48  Am.  Dec.  416; 

26  Vt.  316,  62  Am.  Dec.  574.  Cutler  v.   Bonnev,  30   Mich.  259,   18 

"Fay  V.  Pacific  Imp.  Co.,  93  Cal.  Am.  Rep.  127.    See  Curran  v.  Olson, 

253,  26  Pac.  1099,  28  Pac.  943,  16  L.  88  Minn.  307,  92  N.  W.  1124,  60  L. 

R.  A.  188,  27  Am.  St.  198;  Coskery  R.  A.  Ill,  97  Am.   St.  517. 

V.   Nagle,  83   Ga.  696,   10  S.  E.  491,  ''  Fay  v.  Pac.  Imp.  Co.,  93  Cal.  253, 

6  L.  R.  A.  483,  20  Am.  St.  2,ZZ ;  Car-  26  Pac.   1099,  28  Pac.  943,   16  L.  R. 

ter  V.   Hobbs,   12   Mich.  52,  83  Am.  A.    (N.    S.)    188,   27    Am.    St.    198; 

Dec.  762 ;  Wilkins  v.  Earle,  44  N.  Y.  Hulett  v.  Swift,  ZZ  N.  Y.  571,  88  Am. 

172,  4  Am.  Rep.  655 ;  Shultz  v.  Wall,  Dec.  405. 

134  Pa.  St.  262,  19  Atl.  742,  8  L.  R.  "  Hale  Bailments,  p.  281 ;   Pinker- 

A.  97n,   19  Am.   St.  686.     See  cases  ton   v.   Woodward,   ZZ   Cal.    557,   91 

cited  in  99  Am.  St.  578.  Am.  Dec.  657;  Woodward  v.  Birch, 

"Hulett  V.  Swift,  ZZ  N.  Y.  571,  88  4  Bush  (Ky.)  510. 
Am.  Dec.  405. 


INNKEEPERS POST-OFFICES. 


123 


seems  that  there  is  no  reason  for  relaxing  the  insurer's  liabiHty 
in  cases  where  theft  is  committed  from  within  the  hotel,  by  a 
servant  or  admitted  guest,  though  if  it  were  committed  by  supe- 
rior power  from  without,  the  innkeeper  might  perhaps  be  ex- 
cused.^^  If  loss  occurs  from  the  inherent  nature  of  the  chattel, 
the  innkeeper  is  not  liable,'"  and  all  authorities  agree  that  he  is 
excused  for  loss  caused  by  the  act  of  God  or  the  public  enemy,  or 
the  fault  of  the  guest  or  his  servant.^'' 


§  114.  For  what  goods  innkeeper  is  liable. — The  inn- 
keeper is  generally  held  liable  as  such  for  all  goods  brought  within 
the  inn  by  his  guest,^^  with  the  exception  of  goods  for  sale  or 
show,®"  or  goods  retained  in  the  exclusive  possession  of  the 
guest.*^  However,  there  is  a  line  of  authorities  which  hold  him 
liable  only  for  such  goods  as  are  considered  as  baggage,  when 
traveling.^*  So  under  the  general  rule  he  is  liable  for  any  amount 
of  money  brought  within  by  a  traveler,^^  but  under  the  baggage 
rule,  only  for  a  reasonable  amount  for  his  journey.^*'    The  inn- 


'^Calye's  Case,  8  Coke  63;  Rock- 
well V.  Proctor,  39  Ga.  105;  Spring 
V.  Hager,  145  Mass.  186,  13  N.  E. 
479,  1  Am.  St.  451 ;  Taylor  v.  Downey, 
104  Mich.  532,  62  N.  W.  716,  29  L. 
R.  A.  92,  53  Am.  St.  472;  Gile  v. 
Libby,  36  Barb.  (N.  Y.)  70;  Shultz 
V.  W^all,  134  Pa.  St.  262,  19  Atl.  742, 
8  L.  R.  A.  97n,  19  Am.  St.  686;  Walsh 
V.  Porterfield,  87  Pa.  St.  376;  Cun- 
ningham V.  Bucky,  42  W.  Va.  671, 
26  S.  E.  442,  35  L.  R.  A.  850,  57  Am. 
St.  878. 

''Metcalf  V.  Hess,  14  111.  129; 
Howe  Mach.  Co.  v.  Pease,  49  Vt.  477. 

^°See  Carhart  v.  Wainman,  114  Ga, 
632,  40  S.  E.  781,  88  Am.  St.  45; 
Spring  V.  Hager,  145  Mass.  186,  13 
N.  E.  479,  1  Am.  St.  451;  Purvis  v. 
Coleman,  21  N.  Y.  Ill;  Houser  v. 
Tully,  62  Pa.  St.  92.  1  Am.  Rep.  390 ; 
Walsh  V.  Porterfield,  87  Pa.  St.  376; 
Jalie  V.  Cardinal,  35  Wis.  118. 

*^  Towson  V.  Havre-de-Grace  Bank, 
6  Har.  &  J.  (Md.)  47,  14  Am.  Dec. 
254;  Pinkerton  v.  Woodward,  33  Cal. 
557,  91  Am.  Dec.  657;  Mason  v. 
Thompson,  9  Pick.  (Mass.)  280,  20 
Am.  Dec.  471 ;  Berkshire  Woollen 
Co.  V.  Proctor,  7  Cush.  (Mass.)  41?; 


Rubenstein  v.  Cruikshanks,  54  Mich. 
199,  19  N.  W.  954,  52  Am.  Rep.  806 ; 
Kellogg  V.  Sweenev,  1  Lans.  (N.  Y.) 
397,  modified  46  N.  Y.  291,  7  Am. 
Rep.  333;  Grinnell  v.  Cook,  3  Hill 
(N.  Y.)  485,  38  Am.  Dec.  663;  Mc- 
Daniels  v.  Robinson,  28  Vt.  387,  67 
Am.  Dec.  720. 

'=' Story  Bailments  (9th  ed.),  §  476; 
Williams  v.  Norvell  Shapleigh  Hard- 
ware Co.,  29  Okla.  331,  116  Pac.  786, 
35  L.  R.  A.  (N.  S.)  350  and  note; 
Fisher  v.  Kelsey,  121  U.  S.  383,  30 
L.  ed.  930,  7  Sup.  Ct.  929;  Myers  v. 
Cottrill,  5  Biss.  (U.  S.)  465,  Fed. 
Cas.  No.  9985. 

*^Weisenger  v.  Taylor,  1  Bush 
(Ky.)  275,  89  Am.^Dec.  626;  Vance 
v.  Throckmorton,  5  Bush  (Ky.)  41, 
96  Am.  Dec.  327;  Packard  v.  North- 
craft's  Admr.,  2  Mete.  (Ky.)  439; 
Fuller  v.  Coats,  18  Ohio  St.  343. 

^Sasseen  v.  Clark,  37  Ga.  242; 
Vance  v.  Throckmorton,  5  Bush 
(Ky.)  41,  96  Am.  Dec.  327;  Wood- 
worth  V.  Morse,  18  La.  Ann.   156. 

'=*Kent  V.  Shuckard,  2  B.  &  Ad. 
803;  Smith  v.  Wilson,  36  Minn.  334, 
31  N.  W.  176,  1  Am.  St.  669. 

^  Simon  v.  Miller,  7  La.  Ann.  360; 


124  BAILMENTS. 

keeper  is  not  liable  as  such  for  goods  deposited  by  one  who  is  not 
a  guest,^'^  and  it  is  held  that  the  authority  of  a  hotel  clerk  does  not 
extend  to  binding  the  owner  of  the  hotel  to  such  a  liability  by 
accepting  for  deposit  the  goods  of  one  not  a  guest.^*  It  is  not 
necessary  that  the  goods  should  have  been  owned  by  the  guest ;  it 
is  sufficient  that  he  brought  them  into  the  inn.®*  As  we  have  seen, 
liability  may  attach  before  the  goods  are  brought  within  the  inn, 
and  does  attach  as  soon  as  they  are  put  in  the  control  of  the  inn- 
keeper's servant  or  agent,  it  even  having  been  held  that  a  delivery 
of  a  baggage-check  to  the  servant  of  the  innkeeper  at  the  depot 
or  the  bellboy  in  the  hotel  was  a  delivery  of  the  goods  to  the  inn- 
keeper, causing  liability  to  attach  at  that  time.^°  Property  within 
the  outbuildings  of  the  inn  is  kept  under  the  same  liability  as 
property  within  the  inn  itself.®^  Though  an  innkeeper  is  excused 
for  the  loss  of  goods  in  the  exclusive  custody  of  the  guest,  it  does 
not  follow  necessarily  that  the  guest's  retaining  his  goods  on  his 
person,®^  or  ordering  them  placed  in  his  bedroom,®^  or  in  a  cer- 
tain part  of  the  inn,''*  is  such  possession  as  to  excuse  the  inn- 
keeper. 

§  115.  Limitation  of  liability. — In  some  jurisdictions  inn- 
keepers are  permitted  to  limit  their  liability  by  providing  a  safe 
place  for  the  deposit  of  money  and  valuables  of  a  guest,  and  post- 
Noble  V.  Milliken,  74  Maine  225,  43  Pac.  55,  139  Am.  St.  284  (bellboy)  ; 
Am.  Rep.  581 ;  Freiber  V.  Burrows,  27  Carhart  v.  Wainman,  114  Ga.  632, 
Md.   130.  40  S.  E.  781,  88  Am.  St.  45  (porter). 

^'Thickstun  v.   Howard,  8  Blackf.  "Burrows  v.  Trieber,  21   Md.  320, 

(Ind.)     535;    Carter    v.    Hobbs,    12  83  Am.  Dec.  590;  Albin  v.  Presby,  8 

Mich.  52,  83  Am.  Dec.  762.  N.    H.   408,   29   Am.    Dec.   679;    Mc- 

*®For  example,  one  departing  from  Donald  v.  Edgerton,  5  Barb.  (N.  Y.) 

the  hotel.    Oxford  Hotel  Co.  v.  Lind,  560.     But  merely  tying  horses  under 

47  Colo.  57,   107   Pac.  222,  28  L.  R.  a    shed    without    notice    to    the    inn- 

A.   (N.  S.)  495  and  note;  18  Am.  &  keeper  or  his  hostler  does  not  create 

Eng.  Ann.  Cas.  983;  Booth  v.  Litch-  any  liability  for  their  safety.    Brad- 

f^eld,  201   N.  Y.  466,  94  N.  E.    1078,  ley  Livery  Co.  v.  Snook,  66  N.  J.  L. 

35  L.  R.  A.  (N.  S'.)  710;  Arcade  Ho-  654,  50  Atl.  358,  55  L.  R.  A.  208. 

tel   Co.  V.   Wiatt,  44  Ohio   St.   32,  4  "^Fay  v.   Pacific  Imp.   Co.,  93  Cal. 

N.  E.  398,  58  Am.  Rep.  785.  253,  26  Pac.  1099,  28  Pac.  943,  16  L. 

''Goddard   Bailments,    §    184;    Van  R.  A.  188,  27  Am.  St.  198;  Smith  v. 

Zile  Bailments  (2d  ed.),  §  365:  Tow-  Wilson,  36  Minn.  334,  31  N.  W.  176, 

son  V.  Havre-de-Grace  Bank,  6  Harr.  1  Am.   St.  669;  Jalie  v.  Cardinal,  35 

&  J.  (Md.)  47,  14  Am.  Dec.  254.  Wis.  118. 

*°  See  cases  cited  in  note  54.   Cos-  "^  Packard    v.    Northcraft's    Admr., 

kery  v.   Nagle,  83  Ga.  696,   10  S.  E.  2  Mete.    (Ky.)   439;  Fuller  v.  Coats, 

491;   Sasseen   v.   Clark,  27  Ga.   242;  18  Ohio  St.  343. 

Keith  V.  Atkinson,  48  Colo.  480,  111  **  Fuller  v.  Coats,  18  Ohio  St.  343. 


INNKEEPERS POST-OFFICES. 


12: 


ing  notices  in  certain  designated  places  informing  them  of  the 
fact.®^  Statutes  to  this  effect  must  be  strictly  construed,  as  being 
in  derogation  of  the  common  law,  and  exactly  complied  with.^*^ 
It  is  sometimes  held  that  if  the  notices  have  not  been  posted  in  ac- 
cordance with  law,  actual  notice  to  the  guest  is  not  sufficient  to 
excuse  the  innkeeper,"^  though  other  cases  hold  the  contrary."'* 
Not  only  must  the  notice  be  such  as  is  prescribed  by  the  statute,"" 
and  posted  in  the  places  required  by  the  statute,^  but  it  must  be 
strictly  construed  as  embracing  only  the  kinds  of  property  named  ; 
so  it  is  held  that  a  watch  does  not  come  within  the  exception  of 
"jewels  and  ornaments,"-  nor  forks  and  spoons.^  It  is  probable 
that  the  innkeeper  may  by  express  contract  with  the  guest  limit 
his  liability  to  any  extent  except  for  losses  caused  by  his  own 
negligence.*  Contributory  negligence  of  the  guest  is  a  defense  to 
a  recovery.^  It  is  not  necessarily  negligence  to  consent  to  sleep 
with  a  stranger,  who  later  steals  the  goods  of  the  guest,^  to  fail 
to  inquire  for  goods  for  some  days,'  to  fail  to  inform  the  inn- 
keeper that  the  baggage  contained  valuables^  or  to  fail  to  lock 


•"  Hale  Bailments,  §  290.  See  note 
to  99  Am.  St.  591. 

**  Such  a  statute  does  not  apply 
after  the  guest  has  begun  his  depart- 
ure from  the  inn  and  has  given  his 
baggage  to  a  porter  sent  to  receive 
it,  and  jewels  are  lost  from  a  hand- 
bag. Rockhill  V.  Congress  Hotel  Co., 
237  111.  98,  86  N.  E.  740,  22  L.  R.  A. 
(N.  S.)  576.  See  Lanier  v.  Young- 
blood,  7Z  Ala.  587;  Olsen  v.  Cross- 
man,  31  Minn.  222,  17  N.  W.  375; 
Briggs  V.  Todd,  28  Misc.  208,  59  N. 
Y.  S.  23;  Shultz  v.  Wall,  134  Pa.  St. 
262,  19  Atl.  742,  8  L.  R.  A.  97n,  19 
Am.  St.  686. 

*'  Purvis  V.  Coleman,  14  Sup.  Ct. 
(N.  Y.)  321,  affd.  21  N.  Y.  Ill; 
Shuhz  V.  Wall,  134  Pa.  St.  262,  19 
Atl.  472,  8  L.  R.  A.  97n,  19  Am.  St. 
686. 

**  Olson  V.  Crossman,  31  Minn.  222, 
17  N.  W.  375;  Batterson  v.  Vogel,  8 
Mo.  App.  24. 

*"  Spice  V.  Bacon,  46  L.  J.  Ex.  713, 
36  L.  T.  896;  Porter  v.  Gilkey,  57 
Mo.  235. 

^Lanier  v.  Youngblood,  7Z  Ala. 
587;  Beale  v.  Posey,  72  Ala.  Z2Z. 


^Weadock  v.  Swart,  163  Mich.  602, 
128  N.  W.  734,  Ann.  Cas.  1912A. 
959;  Bernstein  v.  Sweeny,  Z3  N.  Y. 
Super.  Ct.  271 ;  Becker  v.  Warner,  90 
Hun  (N.  Y.)  187,  70  N.  Y.  St.  535, 
35  N.  Y.  S.  739;  Briggs  v.  Todd.  28 
Misc.  (N.  Y.)  208,  59  N.  Y.  S.  23; 
Ramaley  v.  Leland,  29  N.  Y.  Super. 
Ct.  358.  modified  43  N.  Y.  539,  3  Am. 
Rep.  728;  Rains  v.  Maxwell  House 
Co..  112  Tenn.  219,  79  S.  W.  114,  64 
L.  R.  A.  470. 

'Briggs  v.  Todd,  28  Misc.  (N.  Y.) 
208,  59  N.  Y.   S.  23. 

*Schouler  Bailments  (3d  ed.),  § 
309. 

'*  Lanier  v.  Youngblood,  "7^  Ala. 
587;  Fowler  v.  Dorlon,  24  Barb.  (N. 
Y.)  384;  Elcox  v.  Hill,  98  U.  S.  218, 
25  L.  ed.  103;  Read  v.  Amidon,  41 
Vt.  15,  98  Am.  Dec.  560. 

*  Olson  V.  Crossman,  31  Minn.  222, 
17  N.  W.  375. 

'Eden  V.  Drey,  75  III.  App.  102. 

"Bowell  V.  De  Wald,  2  Ind.  App. 
303,  28  N.  E.  430,  50  Am.  St.  240; 
Shoecraft  v.  Bailey.  25  Iowa  553; 
Baehr  v.  Downey,  133  Mich.  163,  94 
N.  W.  750,  103  Am.  St.  444. 


126  BAILMENTS. 

the  door  of  the  room.^  Neither  is  negligence  to  be  imputed  from 
the  fact  that  the  guest  is  engaged  in  illegal  acts,"  but  intoxication 
may  constitute  contributory  negligence." 

§  116.  Innkeeper's  liability  for  the  safety  and  protection 
of  his  guests. — By  the  implied  contract  between  the  inn- 
keeper and  his  guest,  the  former  undertakes  more  than  to  furnish 
him  with  suitable  food  and  lodging,  and  there  is  a  further  implied 
undertaking  that  the  guest  shall  be  treated  with  due  considera- 
tion for  his  safety  and  comfort.^^  The  general  rule  is  that  the 
innkeeper  must  use  reasonable  care  to  fulfil  this  obligation,  and 
is  liable  only  for  negligence/^  A  few  cases  hold  him  to  the  same 
care  as  a  carrier  of  passengers,^*  but  it  is  said  that  since  the  per- 
formance of  the  contract  of  entertainment  is  not  the  chief  occu- 
pation of  the  parties,  as  the  performance  of  the  contract  is  in  the 
case  of  carriers,  and  since  the  guest  does  not  surrender  the  con- 
trol  of  his  person  to  the  innkeeper  to  such  an  extent  as  the  passen- 
ger, and  since  the  servants  of  the  carrier  are  acting  constantly 
within  the  course  of  their  employment  while  performing  the  con- 
tract, while  the  servants  of  the  innkeeper  may  be  present  in  the 
hotel  and  yet  not  acting  within  the  scope  or  course  of  their  em- 
ployment,— for  these  reasons  the  innkeeper  should  not  be  held  to 
so  high  a  degree  of  liability  for  the  acts  of  his  servants  as  the 
carrier,  as  an  insurer  of  the  safety  of  the  guests,  and  is  not 
liable   for  the   acts   of   servants   without   the  scope   or   course 

» Murchison  v.  Sergent,  69  Ga.  206,  954,  52  Am.  Rep.  806,  and  Cunning- 

47  Am.   Rep.   754;    Spring  v.    Hager,  ham    v.    Bucky,    42   W.    Va.    671,    26 

145  Mass.  186,  1  Am.  St.  451 ;  Classen  S.   E.  442,  35  L.  R.  A.  850,  57  Am. 

V.  Leopold,  32  N.  Y.  Super.  Ct.  705;  St.  878. 

Cunninham  v.  Bucky,  42  W.  Va.  671,  "  Clancv  v.  Barker,  71  Nebr.  83,  98 

26  S.  E.  442,  35  L.  R.  A.  850,  57  Am.  N.  W.  440,  103  N.  W.  446,  69  L.  R. 

St.  878.  A.   642,   115   Am   St.   559;   De   Wolf 

"  Cohen  v.  Manuel,  91  Maine  274,  v.  Ford,  193  N.  Y.  397,  86  N.  E.  527, 

39  Atl.  1030,  40  L.  R.  A.  491,  64  Am.  21  L.  R.  A.  (N.  S.)  860,  127  Am.  St. 

St.    225;    Cox    v.    Cook,     14    Allen  969. 

(Mass.)     165.      Compare     Curtis     v.  "  Sheffer    v.    Willoughby,    163    111. 

Murphy,  63  Wis.  4,  22  N.  W.  825,  53  518,  45  N.  E.  253,  34  L.  R.  A.  464,  54 

Am.  Rep.  242.  Am.  St.  483;  Gilbert  v.  Hofifman,  66 

"Becker  v.   Warner,  90  Hun    (N.  Iowa  205,  23  N.  W.  632,  55  Am.  Rep. 

Y.)   187,  70  N.  Y.  St.  535.  35  N.  Y.  263;   Weeks  v.   McNulty,   101   Tenn. 

S.  739 ;  Walsh  v.  Porterfield,  187  Pa.  495,  48  S.  W.  809,  43  L.  R.  A.   185, 

St.  376;  Shultz  v.  Wall,  134  Pa.  St.  70  Am.  St.  693. 

262,   19  Atl.  742,  8  L.  R.  A.  97n,   19  "Clancy   v.    Barker,    71    Nebr.    83, 

Am.     St.    686.      See    Rubenstein    v.  98  N.  W.  440,  103  N.  W.  446,  69  L. 

Cruikshanks,  54  Mich.  199,  19  N.  W.  R.  A.  642,  115  Am.  St.  559. 


INNKEEPERS POST-OFFICES.  1 27 

of  their  employment,  if  reasonable  care  has  been  exer- 
cised/^ The  innkeeper  must  use  ordinary  care  to  keep  his  prem- 
ises in  a  condition  safe  for  the  guest  who  is  using  them  in  the 
ordinary  manner,  but  this  liability  does  not  extend  beyond  the 
places  into  which  guests  may  be  reasonably  supposed  to  be  likely 
to  go  in  a  reasonable  belief  that  they  are  entitled  or  invited  to 
do  so/^  So  he  is  liable  for  injury  caused  by  a  defective  elevator, 
or  for  negligently  unskilful  management  of  the  same/"  He  must 
furnish  ordinarily  safe  furniture/^  He  has,  at  reasonable  times 
and  for  proper  purposes,  the  right  of  access  to  and  control  over 
all  parts  of  his  property,  but  this  right  must  be  exercised  in  ac- 
cord with  the  rights  of  the  guests,  and  he  has  no  right  to  force 
an  entrance  into  the  room  of  a  female  when  she  is  in  scant  at- 
tire/® He  may  change  a  guest's  apartment  under  certain  condi- 
tions, but  if  he  does,  he  must  provide  him  a  proper  apartment,  or 
be  liable  in  damages.""  H  he  expels  one  from  his  inn,  he  must 
use  care  in  so  doing  and  is  liable  for  damages  where  a  sick  man 
is  expelled  into  a  storm  of  ice  and  snow,  from  the  effects  of  which 
he  dies."^ 

§  117.  Innkeeper's  lien. — Since  the  innkeeper  is  under  an 
extraordinary  liability,  the  law  has  given  to  him  the  extraordi- 
nary privilege  of  a  lien  upon  the  baggage  or  goods  of  the  guest 
brought  by  him  to  the  inn,  as  security  for  the  amount  due  the 
innkeeper  for  board,  lodging  and  entertainment."'    This  lien  ex- 

^''Rahmel    v.    Lehndorff,    142    Cal.  ^'Lvttle  v.  Dennv,  222  Pa.  395,  71 

681,  76  Pac.  659,  65  L.  R.  A.  88,  100  Atl.  841,  128  Am.  St.  814. 

Am.   St.   154;   Clancy  v.   Barker,   131  "De  Wolf  v.  Ford,  193  N.  Y.  397, 

Fed.  161,  66  C  C  A.  469,  69  L.  R.  86  N.   E.  527,  21   L.   R.  A.   (N.  S.) 

A.  653.  860,  127  Am.  St.  969. 

"  Sandvs  v.   Florence.  47  L.   J.   C.  ""  Hervey  v.  Hart,  149  Ala.  604,  42 

P.  598;  Axford  v.  Prior,   14  W.  R.  So.  1013,  9  L.  R.  A.  (N.  S.)  213  and 

611;  Walker  v.   Midland   R.   Co.,  55  note,  123  Am.  St.  67. 

L.   T.    (N.   S.)    489;   Ten   Broeck  v.  "^  McHugh    v.    Schlosser,    159    Pa. 

Wells,  47  Fed.  690 ;  Stanley  v.  Birch-  St.  480,  28  Atl.  291,  23  L.  R.  A.  574, 

er,   78  Mo.  245 ;    Patrick  v.   Springs,  39  Am.  St.  699. 

154  N.  Car.  270,  70  S.  E.  395,  Ann.  ""See  notes   107   Am.   St.   864  and 

Cas.   1912A.   1209.  21  L.  R.  A.  229,  and  cases  cited  in 

"  Mauzy  v.  Kinzel,  19  111.  App.  571,  following  notes.    Murray  v.  Marshall, 

Gordon  v.  Cnmmings,  152  Mass.  513;  9   Colo.    482.    13    Pac.    589;    Cook   v. 

Scatt  V  Churchill,  157  N.  Y.  692;  At-  Kane,   13   Ore.   482,   11    Pac.  226.   57 

kinson  v.  Abraham,  45  Hun  (N.  Y.)  Am.    Rep.    28;    Manning   v.    Hollen- 

238,  10  N.  Y.  St.  342.  beck,  21  Wis.  202. 


128  BAILMENTS. 

tends  to  goods  exempt  from  execution,^^  and,  it  has  been  held, 
extends  to  the  goods  of  a  third  person  brought  to  the  inn  by  the 
guest,  unless  the  innkeeper  knows  that  such  goods  are  not  the 
guest's  property,^*  especially  where  the  guest  holds  them  as  serv- 
ant, agent,  or  bailee,  or  the  property  is  animate,  but  the  rule  does 
not  apply  to  stolen  property."^  The  goods,  however,  must  be 
brought  into  the  inn  by  the  guest,-®  and  there  is  no  lien  upon  the 
goods  of  a  boarder  or  lodger.^^  This  lien  depends  upon  posses- 
sion, and  is  waived  by  voluntarily  parting  with  possession,^^  or 
by  taking  a  draft  or  extending  credit,-^  though  taking  security 
is  not  a  waiver  of  a  lien.^°  The  lien  is  extinguished  by  a  tender 
of  the  amount  of  charges.^^  At  common  law  the  innkeeper's 
lien  carries  with  it  no  right  of  sale,  and  cannot  be  enforced  save 
by  a  judicial  action,^-  though  in  some  states  he  now  has  a  right 
to  sell  under  statute.""  The  lien  is  not  lost  by  levying  an  attach- 
ment upon  the  goods.  ^* 

§  118.     Termination  of  relation. — The  innkeeper  may  ter- 
minate his  relation  only  for  misconduct  of  the  guest,^^  or  for 

^  Swan  V.  Bournes,  47  Iowa  501,  29  192;    Hurst   v.   Byers,   29   Mo.   469; 

Am   Rep.  492;  Thorn  V.  Whitbeck,  11  Grinnell    v.    Cook,    3    Hill    (N.    Y.) 

Misc.  (N.  Y.)   171,  32  N.  Y.  S.  1088.  485,  38  Am.  Dec.  663. 

"^  Brown    Shoe    Co.    v.    Hunt,    103        ""^  Pollock  v.  Landis,  36  Iowa  651; 

Iowa  586,  72  N.  W.  765,  39  L.  R.  A.  Mills    v.     Shirley,     110    Mass.     158; 

291,    64    Am.    Rep.    198    (salesman's  Hurst  v.  Byers,  29  Mo.  469;   Singer 

samples  belonging  to  his  employer)  ;  Co.  v.  Miller,  52  Minn.  516,  55  N.  W. 

Singer  :Mfg.  Co.  v.  Miller,  52  Minn.  56,  21  L.  R.  A.  229n,  38  Am.  St.  568; 

516,  55  N.  W.  56,  21   L.  R.  A.  229  note  107  Am.  St.  872. 
(goods  in  the  possession  of  a  guest        ^Hickman  v.  Thomas,  16  Ala.  666; 

under  contract  of  purchase)  ;  Hor-  Manning  v.  Hollenbeck,  27  Wis.  202. 
ace    Waters    &    Co.    v.    Gerard,    106        '"Jones   v.    Thurloc,    8    Mod.    172; 

App.  Div.  (N.  Y.)  431,  94  N.  Y.  Manning  v.  Hollenbeck,  27  Wis.  202. 
S.  702,  affd.,  189  N.  Y.  302,  82  N.  E.        ""Angus   v.    McLachlan,   L.    R.   23, 

143,  24  L.   R.   A.    (N.   S.)    958,   121  Ch.  Div.  330;  Danforth  v.  Pratt,  42 

Am.     St.     886;     Wertheimer-Swarts  Maine  50. 

Shoe  Co  V.  Hotel  Stevens  Co.,  38  '^Gordon  v.  Cox,  7  Car.  &  P.  172. 
Wash.  409,  80  Pac.  563,  107  Am.  St.        "Fox  v.  McGregor,   11   Barb.    (N. 

864.       This     depends     somewhat     on  Y.)    41;   Jones   v.    Pearle,    1    Strange 

statute.    See  McClain  v.  Williams,  11  556;  Case  v.  Fogg,  46  Mo.  44;  note 

S.  Dak.  227,  76  N.  W.  930,  49  L.  R.  107  Am.  St.  871. 
A.  610.  ""  See    Hale    Bailments,    p.    297. 

=="  Clark  V.  Lowell  &c.  R.  Co.,  9  Gray        '*  Lambert  v.   Nicklass,  45  W.  Va. 

(Mass.)    231;   Robinson  v.   Baker,  5  527,  31   S.  E.  951,  44  L.  R.  A.  561, 

Cush.   (Mass.)   137,  51  Am.  Dec.  54;  72  Am.  St.  828. 

Fitch  V.  Newberry,  1  Doug.   (Mich.)         ^'Howell  v.  Jackson,  6  Car.  &  P. 

1.  40  Am.  Dec.  33;  Wyckoff  v.  Sou-  723;    Markham   v.    Brown,   8   N.    H. 

thern  Hotel  Co..  24  Mo.  App.  382.  523,  31  Am.  Dec.  209;  Commonwealth 

""  Pollock  V.  Landis,  36  Iowa  651;  v.  Mitchell,  2  Pars.  Eq.  (Pa.)  431. 
Stanwood   v.   Woodward,   38   Maine 


INNKEEPERS POST-OFFICES.  1 29 

his  failure  to  pay  reasonable  charges.^"  The  guest  may  terminate 
it  at  any  time,  but  if  he  fails  to  notify  the  innkeeper,  he  remains 
liable  for  any  charges  which  accrue.^ ^  A  temporary  absence 
does  not  terminate  it,'"''*  but  when  he  has  paid  his  bill  and  had 
his  name  marked  off  the  register  in  order  to  prevent  his  being 
held  to  the  liability  of  a  guest,  he  can  no  longer  hold  the  inn- 
keeper liable  as  such  for  his  baggage  remaining  in  the  inn.^*^ 
However,  the  liability  of  the  innkeeper  as  such  does  not  terminate 
the  instant  the  guest  pays  his  bill  and  leaves,  but  continues  until 
a  reasonable  time  for  its  removal,*"  or  if,  in  the  ordinary  course 
of  his  business,  the  innkeeper  undertakes  to  remove  it  to  the 
station,  his  liability  continues  until  delivery  at  such  place/^ 

§  119.  Innkeeper  as  ordinary  bailee. — The  innkeeper  is 
an  ordinary  bailee  as  to  the  goods  of  his  boarders  or  lodgers,''" 
or  goods  of  a  guest  kept  for  show  or  sale,*^  or  goods  held  by  him 
under  a  lien  for  his  charges.**  He  may  be  liable  as  a  mere  gratu- 
itous bailee  for  the  goods  which  a  guest  after  departure  leaves 
with  him  for  an  unreasonable  time,*^  or  for  goods  left  in  his 

"Schouler   Bailments    (3d   ed.),   §  Hun   (N.  Y.)  537,  66  N.  Y.  St.  323, 

326;    Lawrence   v.   Howard,    1    Utah  32  N.  Y.  S.  849. 

142.  "Glenn  v.  Jackson.  93  Ala.  342,  9 

"  Miller  V.    Peeples,   60  Miss.   819,  So.  259,  12  L.  R.  A.  382n ;  Sasseen  v. 

45  Am.   Rep.  423.  Clark,   37   Ga.   242;    Giles    v.    Faunt- 

^*Towson  V.  Havre-de-Grace  Bank,  leroy,  13  Md.  126;  Dickinson  v.  Win- 

6  Har.  &  J.    (Md.)   47,   14  Am.  Dec.  Chester,  4  Gush.  (Mass.)   114,  50  Am. 

254n ;  McDonald  v.  Edgerton,  5  Barb.  Dec.  760 ;  Seymour  v.  Cook,  53  Barb. 

(N.    Y.)    560;    Grinnell    v.    Cook,    3  (N.  Y.)  451. 

Hill   (N.  Y.)   485.  38  Am.  Dec.  663;  *"  Taylor  v.  Downey,  104  Mich.  532, 

Whitemore     v.     Haroldson,     2     Lea  62   N.   W.   716,  29  L.   R.  A.  92n,   53 

(Tenn.)    312;    ]\IcDaniels    v.    Robin-  Am.  St.  472.     See  cases  cited  in  note 

son,   26  Vt.   316,   62   Am.   Dec.  574n,  23  and  26,  §   110;  Lawrence  v.  How- 

28  Vt.  387,  67  Am.  Dec.  720.  ard,  1  Utah  142. 

'=•  O'Brien  v.  Vaill,  22  Fla.  627,  1  So.  ''See  cases  cited  in  note  82. 

137,  1  Am.  St.  219 ;  Miller  v.  Peeples,  **  Murray  v.  Marshall,  9  Colo.  482, 

60  Miss.  819,  45  Am.  Rep.  423.  13   Pac.  589;  Giles  v.  Fauntleroy.   13 

*"  Clark    V.    Ball,    34    Colo.   223,    82  Md.   126;   Murray  v.   Clarke,  2  Daly 

Pac.  529,  2  L.  R.  A.  (N.  S.)  100,  114  (N.  Y.)    102.     See  Wear  v.  Gleason, 

Am.  St.   154 ;   Murray  v.   Marshall,  9  52  Ark.  364,  20  Am.  St.  186. 

Colo.  482,  13  Pac.  589,  59  Am.  Rep.  **  O'Brien   v.   Vaill,  22   Fla.  627,    1 

152;  Adams  V.  Clem,  41  Ga.  65,  5  Am.  So.    137,    1    Am.    St.    219;    Miller    v. 

Rep.  524;  Baehr  V.  Downey,  133  Mich.  Peeples.  60   Miss.   819,  45   Am.   Rep. 

163,  94  N.  W.  750,  103  Am.  St.  444;  423;     Whitemore     v.     Haroldson,    2 

Miller   v.    Peeples,   60    Miss.   819,   45  Lea    (Tenn.)    312;    Baker    v.    Bailey 

Am.  Rep.  423;  Maxwell  v.  Gerard,  84  (Ark.)   145  S.  W.  532,  39  L.  R.  A. 


(N.  S.)  1085. 


Bailments — 9 


130  BAILMENTS. 

charge  by  one  who  does  not  become  a  guest,  and  makes  no  agree- 
ment as  to  compensation/® 

§  120.  The  post-office  department  as  bailee. — The  carr}^- 
ing  of  the  mail  is  recognized  by  the  law  as  one  of  the  exceptional 
bailments.  In  this  country,  the  federal  government,  through  the 
post-office  department  and  its  instrumentalities  and  agencies,  car- 
ries the  mail.  Were  this  sendee  undertaken  by  a  common  car- 
rier, or  an  ordinary  bailee  for  hire,  there  is  no  doubt  that  the 
ordinary  principles  of  bailments  would  apply  to  their  undertak- 
ing. But  in  this  country  private  persons  are  forbidden  to  carry 
mail  regularly  over  post-routes  established  by  the  government  in 
order  to  prevent  competition  with  the  government.*^  Since  the 
post-office  department  is  a  department  of  the  government,  it  can- 
not be  sued  without  its  consent,  and,  therefore,  while  it  is  in  a 
way  responsible  for  the  proper  carrj-ing  of  the  mail,  it  is  not 
liable  to  the  one  who  entrusts  mail  to  its  care,  and  generally  any 
negligence  or  failure  of  performance  of  duty  on  the  part  of  the 
agents  of  the  department  can  be  corrected  only  by  action  of  the 
department  itself,  and  is  not  subject  to  review  by  the  courts.*^ 
Postmasters  and  their  clerks  and  assistants  are  public  officers, 
responsible  to  the  government  and  liable  to  it  upon  their  bonds 
for  failure  in  duty.  At  the  same  time  they  are  liable  to  the  per- 
son who  sends  or  who  is  entitled  to  receive  mail  through  their 
offices.  The  mailing,  receiving  and  delivering  of  the  mail  is  a 
business  of  the  highest  importance  to  the  individual,  and  the 
agents  of  the  government  employed  in  this  work  owe  a  duty  to 
the  government  and  the  public  to  use  ordinary  and  reasonable 
diligence  in  accomplishing  the  purposes  of  the  mail  services.  So 
it  is  the  rule  that  whenever  one  can  trace  a  loss  or  breach  of  duty 
resulting  in  loss  to  the  actions  in  respect  to  receiving,  forwarding 
or  delivering  mail  of  a  single  officer,  postmaster,  clerk,  assistant, 

"Stewart    v.    Head,    70    Ga.    449;  United   States  v.   Bromley,   12  How. 

Wiser  v.  Chesley,  53  Mo.  547;  Law-  (U.   S.)    88;   Blackham  v.   Gresham, 

rence  v.  Howard,   1  Utah   142.     See  16  Fed.  609 ;  United  States  v.  Easson, 

note  12  L.  R.  A.  383.    See  for  liability  18  Fed.  590.  21  Blatchf.  (U.  S.)  354. 

as  to  forwarding  packages,  Baehr  v.  **  Schouler   Bailments    (3d   ed.),    § 

Downey,    133    Mich.    163,  94   N.   W.  269;  Hale  Bailments,  §  100;  Van  Zile 

750,  103  Am.  St.  444.  Bailments  (2d  ed.),  §  388. 

"U.    S.    Rev.    Stat.,    §§    389-391; 


INNKEEPERS POST-OFFICES.  13 1 

or  Other  person  commissioned  by  the  government  mail  service, 
the  individual  guilty  of  the  negligence  or  breach  is  liable  in  dam- 
ages to  the  one  suffering  loss.  But  this  liability  is  for  his  per- 
sonal acts  alone,  and  he  cannot  be  held  for  the  acts  of  any  other 
person  in  the  service,  even  if  selected  by  him,  and  under  his 
orders,*^  unless  he  was  negligent  in  his  selection.'^"  If,  however, 
he  employs  a  private  person  to. do  his  work,  paying  him  from  his 
own  means,  the  officer  in  the  government  service  is  liable  for  the 
acts  of  such  agent. ^^  It  has  been  held  that  it  is  not  necessary 
to  prove  particular  negligence  in  relation  to  the  letter  or  package 
lost,  and  that  the  loss  was  the  direct  consequence  of  that  particu- 
lar negligence,  but  that  any  general  proof  of  negligence  tending 
to  show  that  the  loss  was  occasioned  thereby,  which  satisfies  the 
jury,  is  sufficient.^^  The  liability  of  persons  carrying  the  mails 
on  contract  is  the  same  as  that  of  postmasters,  for  their  own 
misfeasances. °^  It  is  also  held  that  a  driver  or  assistant  em- 
ployed and  paid  by  the  contractor  is  employed  in  the  government 
service,  and  that  the  contractor  is  not  liable  for  his  acts.^*  The 
courts  do  not  interfere  with  the  acts  of  the  department  in  deliv- 
ering the  mails,  unless  there  is  a  clear  right  shown  by  the  person 
asking  interference.^^ 

^'Lane  v.  Cotton,  1  Ld.  Raym.  646;  Dec.  224;   Christie  v.   Smith,  23   Vt. 

Keenan     v.     Southworth,    110    Mass.  663. 

474,    14   Am.    Rep.   613;    Schrover   v.  ''Foster  v.   Metts,  55  Miss.  11,  30 

Lynch,  8  Watts.    (Pa.)    453;   Dunlop  Am.  Rep.  504;  Hutchins  v.  Brackett, 

V.  Munroe,  7  Cranch   (U.  S.)   242,  3  22  N.  H.  252,  53  Am.  Dec.  248;  Con- 

L.  ed.  329.  well  v.  Voorhees,  13  Ohio  523,  42  Am. 

'"Whitfield     V.     Le     Despencer,     2  Dec.  206. 

Cowp.  754;  Bishop  v.  Williamson,  11  "Central    R.    &    Banking    Co.    v. 

Maine  495;    Hutchins  v.   Brackett,  2  Lampley,   Id  Ala.   357,  52   Am.    Rep. 

N.     H.     252,     53     Am.     Dec.     248;  334;     United     States     v.     Belew,     2 

Schroyer  v.   Lynch,   8  Watts.    (Pa.)  Brock.    (U.    S.)    280,    Fed.    Cas.    No. 

453;  Dunlop  V.  Munroe,  7  Cranch  (U.  14563.      See   Bankers'   Mut.    Casualty 

S.)  242,  3  L.  ed.  329.  Co.   v.   Minneapolis   &c.   R.   Co.,    117 

"^  Raisler  v.  Oliver,  97  Ala.  710,  12  Fed.  434,  54  C.  C.  A.  608,  65  L.  R. 

So.  238,  38  Am.   St.  213;   Bishop  v.  A.  397;   Boston   Ins.  Co.  v.   Chicago 

Williamson,    11    Maine   495;    Christy  &c.  R.  Co..  118  Iowa  423,  92  N.  W. 

V.  Smith,  23  Vt.  663.  88,  59  L.  R.  A.  796. 

"' Raisler  v.  Oliver,  97  Ala.  710,  12  "' Central     Trust     Co.     v.     Central 

So.  238,  38  Am.  St.  213;  Wiggins  v.  Trust  Co.  of  Illinois.  216  U.  S.  251, 

Hathaway,    6    Barb.     (N.    Y.)    632;  54  L.  ed.  469,   17  Am.  &  Eng.  Ann. 

Danforth  v.  Grant,  14  Vt.  283,  39  Am.  Cas.  1066  and  note. 


CHAPTER  VIII. 

CARRIERS  OF  GOODS SUBJECT  DEFINED  AND  DISTINGUISHED. 

§  121.  Contract  of  carriage  a  bail-  §  126.  Further   of   elements   neces- 

ment.  sary  to  constitute  common 

122.  Common  carrier  defined.  carrier. 

123.  Private  carriers.  127.  Kinds    of    common    carriers 

124.  Distinctions   between   public  with    reference    to     means 

and  private  carriers.  of    transportation. 

125.  Further  of  distinctions — Ex-         128.  Who   are    not    common    car- 

ceptions  to  rules.  riers. 

129.  Common    carrier's    extraor- 
dinary liability  as  bailee. 

§  121.  Contract  of  carriage  a  bailment. — Among  the 
classes  of  bailments  upon  consideration  for  mutual  benefit,  in- 
cluded in  our  general  outline  of  bailments,  was  that  of  contracts 
of  carriage,  or  locatio  operis'nlercium  vehendarum.  Under  our 
general  definition  of  a  bailment  as  a  contract  by  which  the  pos- 
session of  personal  property  is  temporarily  transferred  from  the 
owner  to  another  for  the  accomplishment  of  some  special  purpose, 
it  is  at  once  apparent  that  the  contract  entered  into  by  the  car- 
rier of  goods  is  a  contract  of  bailment.  In  contracts  for  the  car- 
rying of  goods,  the  possession  of  the  goods  is  temporarily  trans- 
ferred by  the  owner  to  the  carrier  in  order  that  they  may  be  trans- 
ported from  the  place  of  delivery  to  some  other  place  which  the 
owner  directs,  there  to  be  redelivered  by  the  carrier  to  the  owner 
in  accordance  with  his  directions.  Contracts  for  carriage  are 
distinguished  from  other  contracts  of  bailment  in  two  essential 
particulars:  first,  the  greatly  disproportionate  number  of  such 
contracts  entered  into  as  compared  with  other  bailments  makes 
the  subject  of  carriers  one  of  the  most  important  of  modern 
law ;  second,  because  of  the  public  nature  of  the  carrier's  duties, 
there  are  certain  special  features  and  liabilities  pertaining  to  con- 
tracts of  carriage  not  pertaining  to  ordinary  bailments.^ 

*The  relationship  between  the  law  Mr.  Schouler  in  the  following  quota- 

of   carriers   and  the  general  law  of  tion    from    his    work    on    bailments : 

bailments  and  the  difficulties  of  the  "Our     previous     study     has     cleared 

subject  were  very  aptly  expressed  by  the    way    for    discoursing   at   length 

132 


CARRIERS DISTINCTIONS.  1 33 

§  122.  Common  carrier  defined. — The  general  definition 
of  a  common  carrier  is  tliat  of  Chief  Justice  Parker,  in  the  case 
of  Dwight  V.  Brewster  as  "one  who  undertakes,  for  hire  or  re- 
ward, to  transport  the  goods  of  such  as  choose  to  employ  him, 
from  place  to  place.""  More  specifically,  the  common  carrier 
undertakes  upon  certain  lawful  terms  offered  to  the  public  by 
him,  and  by  the  methods  and  means  which  he  holds  out,  to  carry 
for  hire  the  kinds  of  goods  which  he  represents  himself  as  carry- 
ing, from  place  to  place,  for  all  who  apply  to  him  for  such  serv- 
ices, and  he  is  by  law  liable  for  refusal  to  carry  goods  under  the 
conditions  of  his  holding  out  to  the  public.^  Thus  the  carrier 
enters  into  a  contract  implied  by  law,  if  not  express,  every  time 
he  accepts  goods  for  carriage,  and  is  liable  for  the  violation  of 
such  contract,  while  if  he  violates  the  duty  of  a  carrier  by  his 
negligence,  he  is  also  liable  in  tort,  and  in  many  cases  the  carrier 
may  be  sued  either  in  contract  or  in  tort  for  the  same  act.*  It 
is  somewhat  difficult  to  separate  contract  liability  from  tort  lia- 
bility in  treating  the  subject  of  carriers,  but  the  aim  of  the  pres- 
ent article  is  to  deal  with  it  from  the  standpoint  of  contract  re- 
lations, and  to  make  only  incidental  reference  to  torts  of  carriers. 

upon  a  final  topic,  included  under  the  bear  constantly  in  mind  that  this 
head  of  Bailments,  which,  in  practical  transportation  of  movable  property 
consequence  to  modern  society  and  to  and  fro,  which  involves  immense 
modern  jurisprudence,  overshadows  mercantile  and  commercial  interests, 
all  the  others  grouped  together.  The  such  as  the  ancient  world  never 
law  of  Carriers  has  not  only  become  dreamed  of,  is  but  a  bailment,  whose 
already  of  surpassing  magnitude,  but  essence  consists  in  the  delivery  of  a 
of  surpassing  intricacy;  the  keenest  chattel  for  the  accomphshment  of  a 
intellect  of  practitioners  and  the  most  certain  purpose,  to  be  succeeded  by 
profound  wisdom  of  judges  serve  delivering  it  back  or  over  when  that 
hardly  to  unravel  and  lay  open  its  purpose  is  accomplished,  and  that  the 
principles;  distinctions  relied  upon  present  idiosyncrasy  simply  consists 
in  the  decisions  seem  often  unnatural,  in  an  extraordinary  degree  of  re- 
forced,  and  contradictory,  as  though  sponsibility  to  which  public  policy 
the  law  were  training  itself  into  sup-  chooses  to  subject  the  class  of  bailees 
pleness,  in  order  that  courts  and  known  as  common  carriers,  we  shall 
juries  might  deal  with  individual  lose  our  most  needful  clue."  Schouler 
cases  according  to  discretion.  Here  on  Bailments  (3d  ed.),  §  330. 
we  find  courts  deciding  with  a  bias  "Dwight  v.  Brewster,  1  Pick, 
in  favor  of  great  corporations  at  one  (Mass.)  50,  11  Am.  Dec.  133.  See 
time,  and  of  the  public  at  another;  also,  The  Cafe  Charles,  198  Fed. 
and  counsel  most  acute  to  shift  the  346.  349. 

burden    of    proof    from    one    litigant  ^  See    2    Kent.     Com.    598;     Story 
to  the  other.     And  unless  we  deter-  Bailments   (9th  cd.),  §  495;  Hutchin  ■ 
mine  to  take  no  precedent  for  more  son  Carriers,  §  47. 
than  it  is  worth,  to  keep  fast  hold  of  _  *  Even    where    a    passenger    is    in- 
fundamental  bailment  principles,  and  jured   by   a   carrier's   negligence,    he 


134  BAILMENTS. 

§  123.  Private  carriers. — A  private  carried  is  one  who 
does  not  hold  out  to  the  pubHc  that  he  will  carry  for  all,  but  who 
upon  a  particular  occasion  or  occasions  undertakes  to  carry  the 
goods  of  another,  either  gratuitously  or  for  hire.^  The  principles 
governing  the  rules  of  ordinary  bailments  and  contracts  of  hir- 
ing apply  almost  in  their  entirety  to  the  law  of  private  carriers. 
If  one  carries  goods  gratuitously,  the  law  of  gratuitous  bailments 
applies.^  If  he  carries  for  hire,  he  is  liable  for  ordinary  care 
only  in  the  performance  of  his  contract,^  and,  unlike  a  common 
carrier,  may  restrict  by  contract  his  liability  to  almost  any  degree, 
even  for  his  own  negligence.®  He  carries  entirely  according  to 
the  terms  of  his  contract,  subject  to  the  ordinary  liability  of  the 
bailee  for  hire,  may  carr}^  for  whom  he  pleases,  when  and  where 
he  pleases,  and  is  under  no  obligations  in  any  manner  as  holding 
himself  out  to  the  public.® 

§  124.     Distinctions  between  public  and  private  carriers. 

— The   essential   distinction   between   the   common   and   private 
carrier  lies  in  the  fact  that  the  former  is  under  a  public  duty  to 

may    elect    between     an     action     for  349.  A  private  carrier  is  one  who  acts 

breach  of  contract  and  an  action  in  in  a  particular  case  for  hire  or  reward, 

tort.     Aiken  v.   Southern  R.   Co.,  118  A  common  carrier  is  one  who  under- 

Ga.  118,  44  S.  E.  828,  62  L  .R.  A.  666.  takes  to  transport  goods  for  the  gen- 

98   Am.    St.    107.      See   also,    Kansas  eral   public   and    is   compelled   to    do 

City  F.   S.   &   M.   R.   Co.   v.   Becker,  so   by   law.     O'Rourke   v.    Bates,    11 

67  Ark.  1,  53  S.  W.  406,  46  L.  R.  A.  ^lisc.    (N.    Y.)    414,    133    N.    Y.    S. 

814,  n  Am.  St.  78 ;  Nevin  v.  Pullman  392. 

&c.    Co.,    106    111.   222,    46   Am.    Rep.  *  See  previous    chapter   on  gratui- 

688;  Louisville  &  N.  R.  Co.  v.  Gaines,  tons  bailments.     Hutchinson  Carriers 

36  S.  W.  174,  99  Ky.  411,  59  Am.  St.  (3d   ed.),   §§   16-34;   Coggs  v.  Bern- 

465 ;  McKeon  v.  Chicago  M.  &  St.  P.  ard,  2  Ld.  Raym.  909. 

Ry.  Co.,  94  Wis.  477,  69  N.  W.  175,  'Story  Bailments   (9th  ed.),  §  399; 

35  L.  R.  A.  252,  59  Am.  St.  910.    And  Central  of  Ga.  R.  Co.  v.  Glascock,  117 

where   a    carrier    contracted    to    fur-  Ga.    938,    43    S.    E.    981 ;    Jaminet   v. 

nish  safe  and  properly  inspected  cars,  American   Storage   and   Moving   Co., 

he  is  liable  in  contract  for  the  death  109    Wo.    App.    257,    84    S.    W.    128; 

of  an  employe  of  the  shipper  caused  United  States  v.  Power,  6  Mont.  271, 

by  defective  cars.    Hoosier  Stone  Co.  12    Pac.    639;    Ames    v.    Belden,    17 

v.  Louisville  &c.  R.  Co..  131  Ind.  575,  Barb.    (N.    Y.)    513;    White  v.    Bas- 

31  N.  E.  365.     For  negligence  of  the  com,  28  Vt.  268. 

carrier     in     transporting    stock,    the  ^Hutchinson    Carriers,    §    40;    EI- 

shipper  may  sue  ex  contractu,  or  ex  liott  R.   R.    (2d  ed.),   §    1397;   Wells 

delicto.      Eckert   v.    Pennsylvania    R.  v.  Steam  Nav.  Co.,  2  Coms.   (N.  Y.) 

Co.,  211   Pa.  St.  267,  60  Atl.  781,  107  204;  Alexander  v.  Greene.  3  Hill  (N. 

Am.    St.   571.     See    §273,    post.  Y.)  9,  revg.  7  Hill  (N.  Y.)  533. 

"Hutchinson     Carriers,     §  35;     El-  "Robinson   v.   Dunmore,   2   Bos.   & 

liott   R.   R.    (2d  ed.),   §§   1396,    1397;  P.   416;    Kimball   v.    Rutland   &c.    R. 

Pennewih  v.   Cullen,  5  Harr.    (Del.)  Co.,  26  Vt.  247,  62  Am.  Dec.  567. 
328;  The  Cafe  Charles,  198  Fed.  346, 


CARRIERS DISTINCTIONS. 


135 


carry  for  every  one,  under  certain  conditions,  usually  of  his  own 
making,  so  that  if  he  refuses  to  carry  within  these  limitations, 
he  is  liable.^*^  The  common  carrier  who  holds  himself  out  as 
carrying  for  the  public  is  engaged  in  carrying  as  a  business  and 
he  must  carry  for  the  public"  goods  of  the  character  for  which 
his  business  is  conducted^-  over  his  usual  route^^  and  by  his 
usual  means  for  hire^*  upon  compliance  with  reasonable  condi- 
tions^^ common  to  all  who  may  seek  his  services,  and,  if  without 
sufficient  reason  he  refuses  or  fails  to  do  any  of  these  things,  he 
is  liable.  Since  his  employment  is  public,  he  owes  the  public  a 
duty,  and  by  law  a  strict  responsibility  is  imposed  upon  him  for 
this  reason,  and  the  common  carrier  is  held  to  be  under  the  duty 
to  carry  for  all,  and  to  be  the  insurer  of  the  safety  of  the  goods 
while  the  same  are  in  his  possession  as  carrier,  except  against 
certain  legal  perils  as  to  which  he  is  not  an  insurer.^*  Thus  the 
question  becomes  important  as  to  whether  one  carrying  goods  is 
a  private  or  a  common  carrier,  and  the  answer  is  held  to  depend 
on  whether  the  carrier  has  held  himself  out,  expressly  or  im- 
pliedly, as  willing  to  carry  the  particular  class  of  goods  between 


"Schlos9  V.  Wood,  11  Colo.  287,  17 
Pac.  910;  Long  v.  Brady,  IZ  Conn. 
707,  49  Atl.  199;  Central  of  Ga.  R. 
Co.  V.  Lippman,  110  Ga.  665,  36  S.  E. 
202,  50  L.  R.  A.  673;  Fish  v.  Chap- 
man, 2  Ga.  349,  46  Am.  Dec.  393; 
Varble  v.  Bigley,  14  Bush  (Ky.) 
698,  29  Am.  Rep.  435;  O'Rourke  v. 
Bates,  1?>  Misc.  (N.  Y.)  414,  133  N. 
Y.  S.  392.  See  also,  Piedmont  Mfg. 
Co.  V.  Columbia  &c.  R.  Co.,  19  S. 
Car.  353,  quoted  in  The  Cafe  Charles, 
198  Fed.  346,  349. 

"Nugent  V.  Smith  (1875),  L.  R. 
1  C.  P.  Div.  19  &  423 ;  Fish  v.  Chap- 
man, 2  Ga.  349,  46  Am.  Dec.  393; 
Southern  Exp.  Co.  v.  Rose,  124  Ga. 
581,  53  S.  E.  185.  5  L.  R.  A.  (N.  S.) 
619  and  notes ;  Allen  v.  Sackrider,  Zl 
N.  Y.  341 ;  Thompson-Houston  Elec- 
tric Co.  V.  Simon.  20  Ore.  60,  25 
Pac.  147,  10  L.  R.  A.  251,  23  Am.  St. 
86. 

"Fish  V.  Chapman.  2  Ga.  349,  46 
Am.  Dec.  393;  Kansas  Pac.  R.  Co. 
V.  Nichols,  9  Kans.  235,  12  Am.  Rep. 
494;  Michigan  S.  &  N.  I.  R.  Co.  v. 
McDonough.  21  Mich.  165.  4  Am. 
Rep.   466;    Honey  man    v.    Oregon    & 


Cal.  R.  Co.,  13  Ore.  352,  10  Pac.  628, 
57  Am.  Rep.  20;  Thompson-Houston 
Electric  Co.  v.  Simon,  20  Ore.  60,  25 
Pac.  147,  10  L.  R.  A.  25,  23  Am.  St. 
86. 

"Hutchinson  Carriers  (3d  ed.),  § 
60;  Elliott  R.  R.  (2d  ed.),  §  1569; 
Chicago  &c.  R.  Co.  v.  Wallace,  66 
Fed.  506,  14  C.  C.  A.  257,  30  L.  R. 
A.  161n,  24  U.  S.  App.  589;  Pitts- 
burg &c.  R.  Co.  V.  Morton,  61  Ind. 
539,  28  Am.  Rep.  682;  Pitlock  v. 
Wells,  109  Mass.  452;  Coup  v.  Wa- 
bash &c.  R.  Co.,  56  Mich.  Ill,  22  N. 
W.  215,  56  Am.  Rep.  374. 

"Knox  V.  Rives,  14  Ala.  249, 
48  Am.  Dec.  97 ;  Central  R.  &  B.  Co. 
V.  Lampley,  76  Ala.  357,  52  Am.  Rep. 
334;  New  York  Cent.  R.  R.  Co.  v. 
Lockwood,  17  Wall.  (U.  S.)  357,  21 
L.  ed.  627;  Citizens'  Bank  v.  Nan- 
tucket Steamboat  Co.,  2  Story  (U. 
S.)  16,  Fed.  Cas.  No.  2730. 

"See  §  130  infra. 

"  See  Hutchinson  Carriers  (3d 
ed.),  §  48  and  notes;  Elliott  R.  R. 
(2d  ed.).  §  1454.  See  §  164  et  seq., 
infra. 


136  BAILMENTS. 

the  points  of  carriage  for  all  who  may  apply  to  him,  indiscrimi- 
nately and  without  differentiation,  for  thus  only  does  his  employ- 
ment become  common  and  public  in  character,  and  the  one  who 
has  not  put  himself  within  this  definition  is  held  a  private  car- 
rier/^ 

§  125.  Further  of  distinctions — Exceptions  to  rules. — 
Yet,  in  a  few  instances,  there  have  been  exceptions  to  the  gen- 
eral rule  and  current  of  authority  as  in  the  leading  case  of 
Gordon  v.  Hutchinson.  The  court  held  that  the  responsibil- 
ity of  a  common  carrier  rested  upon  a  farmer  who  applied  to 
a  merchant  to  haul  for  him  a  load  of  goods  from  Lewiston  to 
Bellefonte,  upon  his  return  from  hauling  a  load  of  iron  to  Lewis- 
ton.  He  was  engaged,  and  because  the  contents  of  a  hogshead 
of  molasses  were  lost  by  the  head  coming  out,  the  merchant 
brought  action  against  the  farmer,  who  was  held  to  be  a  com- 
mon carrier  under  the  circumstances,  not  because  he  was  accus- 
tomed to  carry  for  the  public,  but  for  the  reason  that,  as  he  had 
himself  sought  the  employment,  he  was  considered  to  have  done 
so  on  the  usual  conditions,  not  on  terms  of  diminished  respon- 
sibility.^^ Another  case  went  so  far  as  to  hold  a  farmer  who 
sometimes  ran  boats  for  himself  or  others,  and  who  had  aban- 
doned a  contemplated  trip  for  himself  at  the  plaintiff's  solicita- 
tion and  loaded  his  own  boat  and  plaintiff's  with  lumber  for 
market,  liable  as  a  common  carrier  to  the  plaintiff  for  the  loss 
of  part  of  the  lumber  on  the  trip.  It  seems  that  the  reason  of 
this  decision  was  that,  since  carriage  by  river  craft  was  very 
common  in  those  days,  such  carriers  should  be  held  bound  more 
strictly  than  mere  private  carriers.^^  These  cases  are  exceptions, 
not  generally  followed,  and  in  circumstances  almost  exactly 
similar  both  to  the  first^"  and  the  second,-^  the  courts  have  held 
that  the  carrier  was  a  private  carrier. 

§  126.  Further  of  elements  necessary  to  constitute  com- 
mon carrier. — The  general  rule,  so  firmly  settled  as  to  be 

"See  cases  cited  under  note  11.  "^Steele  v.    McGver,   31    Ala.   6Q ', 

"Gordon   v.   Hutchinson,    1   Watts  The    Dan,    40    Fed.    691;    Flautt    v. 

&  S.  (Pa.)  285,  il  Am.  Dec.  464.  Lashley.   Zd   La.    Ann.    106;    Fish    v. 

"Moss  V.  Bettis,  4  Heisk.   (Tenn.)  Clark,  2  Lans.  (N.  Y.)   176,  affd.,  49 

661.  13  Am.  Rep.  1.  N.   Y.   122. 

'•  Samms  v.  Stewart,  20  Ohio  69. 


CARRIERS DISTINCTIONS.  137 

elementary,  is  that  one  to  be  subjected  to  the  liability  of  a  com- 
mon carrier  must  have  held  himself  out  as  carrying  for  all  in 
such  manner  that  an  action  would  lie  for  his  refusal  to  carry  for 
any  person  applying,  within  the  restrictions  of  his  holding  out."'' 
A  common  carrier  undertakes  to  carry  only  certain  kinds  of 
goods,  therefore  he  is  liable  only  as  a  private  carrier,  if,  as  ac- 
commodation, or  by  special  contract,  he  agrees  to  carry  goods 
not  in  the  line  of  his  ordinary  business."'^  Also  he  undertakes 
to  carry  only  by  the  means  and  over  the  route  used  in  his  busi- 
ness, not  by  indiscriminate  means,  or  to  points  not  on  his  route, 
so  that  if  he  by  special  contract  agrees  to  carry  by  other  means 
or  over  other  routes  than  those  which  he  holds  open  to  all,  his 
liability  would  be  governed  by  the  special  contract  of  hiring."* 
And  in  order  to  impose  upon  him  the  extraordinary  liability  of 
a  common  carrier,  he  must  in  some  manner  receive  compensa- 
tion for  his  service,  otherwise  he  would  be  a  mere  gratuitous 
bailee,  liable  only  for  gross  negligence."^  There  rests  upon  the 
common  carrier  an  obligation  to  carry  for  all;  therefore  if  he 
refuses  to  carry,  an  action  will  lie,  and  it  was  said  in  the  leading 
case  of  Fish  v.  Chapman^''  that  the  safest  test  of  whether  one  is 
a  common  carrier  is  his  liability  to  respond  in  damages  for  failure 
to  carry.  It  is  not  necessary  that  a  carrier  should  make  regular 
trips  or  carry  only  between  fixed  terminals,  if  otherwise  he  fulfils 
the  requisites  of  a  common  carrier." 

^Nugent  V.  Smith   (1875),  L.  R.  1  257,  30  L.  R.  A.   161;  Honeyman  v. 

Com.    PI.    Div.    19    &    423;    Fish    v.  Oregon  &  C.  R.  Co.,  13  Ore.  352,  10 

Chapman,      2      Ga.      349,      46      Am.  Pac.  628,  57  Am.  Rep.  20;   Memphis 

Dec.  393;  Lanning  v.  Sussex  R.  Co.,  News  Pub.  Co.  v.  Southern  Railroad 

1   N.   J.   L.  21;   Piedmont   Mfg.   Co.  Co.,  110  Tenn.  684,  75  S.  W.  941,  63 

V.  Columbia  &  G.  R.  Co.   19  S.  Car.  L.    R.   A.    150;    New   York   Cent.   R. 

353.     See  cases  cited  in  note  10.    Yet  Co.  v.   Lockwood,    17  Wall.    (U.   S.) 

the  mere  fact  that  one  holding  him-  357,  21   L.   ed.   627;   Kimball  y.   Rut. 

self    out    as    a   common    carrier    dis-  &  Burl.   R.  Co.,  26  Vt.  247,  62  Am. 

criminates  between  patrons,  accepting  Dec.  567. 

some  and  rejecting  others,   does  not  "*  Chicago   M.   &   St.    P.    R.   Co.    v. 

absolve  him  from  liability  as  a  com-  Wallace.   66    Fed.    506,    14   C.    C.    A. 

mon    carrier    for    the    loss    of    goods  257,  30  L.  R.  A.  161. 

which    he     undertook    to    transport.  "^  See  cases  cited  in  note  14. 

Lloyd   V.   Haugh  &  K.  Co.,  223   Pa.  ="  Fish  v.   Chapman,  2   Ga.  349,  46 

148,  72  Atl.  516,  21  L.  R.  A.   (N.  S.)  Am.  Dec.  393. 

188n.  -^  Liver   Alkali    Co.   v.   Johnson,   L. 

=*  Chicago   M.   &   St.   P.   R.   Co.   v.  R.  7  Ex.  267.  L.  R.  9  Ex.  338;  Pen- 
Wallace,   66   Fed.   506,    14   C.    C.   A.  newill  v.  Cullen,  5  Harr.   (Del.)  238. 


138 


BAILMENTS, 


§  127.  Kinds  of  common  carriers  with  reference  to  means 
of  transportation. — Compliance  with  the  requirements  above 
mentioned  constitutes  one  a  common  carrier,  and  it  makes  no 
difference  by  what  means  he  transports  goods.  Railroads  are 
to-day  probably  the  most  usual  common  carriers,  and  all  railroad 
companies  conducting  ordinary  commercial  railroads  are  com- 
mon carriers  of  goods  whether  or  not  made  so  by  charter 
or  statute,"^  and  all  persons  operating  a  railroad  under  the 
charter,  whether  private  individuals,  trustees,  or  receivers^^  are 
held  to  the  common  carrier's  duties.  So  numerous  are  the  cases 
arising  under  the  common  carrier's  duty  devolving  upon  the  rail- 
roads that  the  greater  number  of  the  citations  in  this  article  will 
be  from  railroad  cases.  Perhaps  next  in  importance  are  the 
owners  of  vessels,  including  steamboats,  steamships,  sailing  ships, 
salt  and  fresh  water  vessels,  and,  besides  the  owners  of  larger 
freight  vessels,  may  be  included  bargemen,  lightermen,  canal-boat- 
men, flatboatmen,  raftmen,  and  all  who  by  vessel  offer  to  carry 
the  goods  of  others  indiscriminately  for  hire.^°  Public  ferrymen 
may  be  common  carriers,  but  while  the  liability  of  a  ferryman  is 
in  some  cases  held  to  be  absolutely  that  of  a  common  carrier,"  in 

=' Elliott  Railroads  (2d  ed.),  §  1393  '"Hutchinson  Carriers  (3d  ed.),  §§ 
and  cases  cited.  Pickford  v.  Grand  74-75;  Morse  v.  Slew,  1  Ventris  190; 
Junction  R.  Co.,  12  M.  &  W.  766;  Laveroni  v.  Drury,  8  Exch.  166;  Gage 
Chicago  &c.  R.  Co.  v.  Thompson,  19  v.  Girrell,  9  Allen  (Mass.)  299;  Hol- 
111.  577;  Norway  Plains  Co.  v.  Boston  lister  v.  Nowlen,  19  Wend.  (N.  Y.) 
&c.  R.  Co.,  1  Gray  (Mass.)  263,  61  234,  32  Am.  Dec.  455;  De  Mott  v. 
Am.  Dec.  423;  Thomas  v.  Boston  Laraway,  14  Wend.  (N.  Y.)  225,  28 
&c.  R.  Co.,  10  Mete.  (Mass.)  472,  Am.  Dec.  523;  McGregor  &  Co.  v. 
43  Am.  Dec.  444;  Thompson  &c.  R.  Kilgore,  6  Ohio  358,  27  Am.  Dec.  260; 
Co.  V.  Simon,  20  Ore.  60,  25  Pac.  Propeller  Niagara  v.  Cordes,  21  How. 
147,  23  Am.  St.  86,  10  L.  R.  A.  251;  (U.  S.)  7,  16  L.  ed.  41;  Liverpool  & 
Eagle  V.  White,  6  Whart.  (Pa.)  505,  G.  W.  Steam  Co.  v.  Phenix  Ins.  Co., 
37  Am.  Dec.  434.  Upon  accepting  a  129  U.  S.  397,  32  L.  ed.  788,  9  Sup. 
charter  as  a  railroad  company,  duty  Ct.  469;  Schooner  Reeside,  2  Sumner 
arises  to  provide  facilities  to  meet  (U.  S.)  567;  Citizens'  Bank  v.  Nan- 
reasonable  requirements.  State  v.  tucket  Steamboat  Co.,  2  Story  (U. 
Atlantic  Coast  Line  R.  Co.,  53  Fla.  S.)  16;  Hyde  v.  Trent  &c.  Nav.  Co., 
650,  44  So.  213,  13  L.  R.  A.  (N.  S.)  5  T.  R.  389;  Fish  v.  Clark,  49  N.  Y. 
320n.  122 ;  Bowman  v.  Teall.  23  Wend.  (N. 

^^EHiott  R.  R.  (2d  ed.),  §  1393;  Da-  Y.)  306,  35  Am.  Dec.  562. 

vis  V.  Button,  78  Cal.  247,  18  Pac.  133,  ''  Harvey  v.  Rose,  26  Ark.  3,  7  Am. 

20  Pac.  545 ;  Paige  v.  Smith,  99  Mass.  Rep.   595;   Fisher  v.    Clisbee,   12   111. 

395;    Rogers   v.    Wheeler,   43    N.    Y.  344;  Lewis  v.  Smith.  107  Mass.  334; 

598;    Sprague  v.    Smith,  29  Vt.   421,  Le  Barron  v.  East  Boston  Ferry  Co.. 

70    Am.    Dec.    424;     Blumenthal    v.  11   Allen    (Mass.)    312,  87  Am.  Dec. 

Brainerd,   38  Vt.    402,   91    Am.   Dec.  717n;   Powell  v.   Mills,  37  Miss.  691; 

349.  Wilson  v.  Hamilton,  4  Ohio  St.  722. 


CARRIERS DISTINCTIONS.  I39 

Others  it  is  held  that  if  the  goods  ferried  arc  in  the  custody  of 
the  owner,  the  strict  Habihty  of  a  common  carrier  should  not  be 
imputed  to  the  ferryman."-  Those  who  make  a  business  of  trans- 
porting the  goods  of  the  public  for  hire  by  land  vehicles  are  com- 
mon carriers;  those  which  carry  passengers  may  be  if  they  also 
carry  goods  for  hire.^^  So  among  those  who  have  been  held  to  be 
common  carriers  are  the  owners  of  drays,  trucks,  stage  coaches, 
omnibuses,  sleds,  street  cars  if  carrying  goods,  hacks,  and  pas- 
senger-carrying vehicles  as  to  the  baggage  of  their  passengers.^* 
Express  companies  are  among  the  most  extensive  common  car- 
riers, and  are  held  such  although  they  transport  goods  by  instru- 
mentalities owned  by  others,  since  the  essential  part  of  their  con- 
tract is  that  the  goods  shall  be  carried  to  their  destination,  and  it 
makes  no  difference  that  the  contracting  company  does  not  at  all 
times  have  direct  control  of  the  means  of  transportation.^^  Ware- 
housemen, wharfingers  or  forwarders  may  be  common  carriers 
if  the  deposit  of  goods  with  them  is  merely  an  incident  of  their 
carriage  or  their  transportation,^^  but  if  goods  are  left  with  a 
forwarder  or  warehouseman  which  are  to  be  shipped  according 
to  future  orders  to  be  given  by  the  owner,  or  to  be  put  into  con- 

"  White    V.    Winnisimmet    Co.,    7  hurt,  158  N.  Y.  34,  52  N.  E.  665,  70 

Cush.      (Mass.)      155;     Wyckoff     v.  Am.   St.  432;   Hebard  v.   Riegel,  67 

Queen   County   Ferry  Co.,  52   N.   Y.  111.  App.  584;   Richards  v.  Westcott, 

2>2,  11  Am.  Rep.  650.  2    Bosw.    (N.    Y.)    589;    Verner    v. 

"=  Hutchinson     Carriers     (3d    ed.),  Sweitzer,  32   Pa.    St.   208). 
§§  68.  70.  "'Hutchinson  Carriers   (3d  ed.),  §§ 

^ Those     transporting     goods     by  80-84;  ElHott  R.  R.  (2d  ed.).  §  1401; 

drays    or    transfer    v/agons    may   be  Southern     Exp.     Co.    v.    Crook,    44 

common  carriers.     Arkadelphia  Mill-  Ala.    468,    4    Am.     Rep.     140;     Gul- 

ing  Co.  V.  Smoker  Mdse.  Co.  (Ark.),  liver  v.  Adams  Exp.  Co.,  38  111.  503; 

139  S.  W.  680;   Model  Clothing  Co.  Beickland    v.    Adams    Exp.    Co.,    97 

V.  Columbia  Tr.  Co.  (Mo.  App.),  139  Mass.    124,  93   Am.   Dec.   68;    United 

S.    W.    242.      Also,    hackney    coaches  States   Exp.    Co.    v.    Root,    47    Mich. 

(Bonce   v.   Dubuque   St.   R.    Co.,   53  231,    10    N.    W.    351;    Bardwell    v. 

Iowa  278,  5  N.  W.  177,  36  Am.  Rep.  American  Exp.  Co.,  35  Minn.  344,  28 

221;   Budd  v.   Carriage  Co.,  25   Ore.  N.    W.   925;    American    Exp.    Co.    v. 

314,  35  Pac.  660,  27  L.  R.  A.  279),  Smith,  ZZ  Ohio  St.  511,  31  Am.  Rep. 

omnibuses    (Parmelee  v.   Lowitz,   74  561;  Stadhecker  v.  Combs,  9  Rich.  L. 

111.  116,  24  Am.  Rep.  276;   Parmelee  (S.  Car.)    193. 

V.  McNulty,  19  111.  556),  sleds  (Rob-        "^^  Story  Bailments  (9th  ed.),  §  536; 

ertson    v.    Kennedy,    2    Dana    (Ky.)  Forward  v.  Pittard,  1  T.  R.  27;  Pon- 

430.   26   Am.    Dec.   466),   other   land  tifex  v.  Hartley   (1893),  62  L.  J.  Q. 

vehicles,      city      express      companies,  B.    196;    Schloss   v.   Wood,    11    Colo. 

transfer     companies,     &c.      (Jackson  287,  17  Pac.  910. 
Architectural   Iron   Works  v.   Hurl- 


140  BAILMENTS. 

dition  by  the  owner  before  shipping,  the  warehouseman  is  not 
as  to  those  goods  a  common  carrier."^ 

§  128.  Who  are  not  common  carriers. — Ship-owners  are 
usually  common  carriers,  yet  this  is  true  only  when  the  essential 
elements  of  a  carrier  are  present.^^  Tug  boats  and  towing  boats 
are  ordinarily  not  common  carriers,  because  the  goods  are  not 
placed  in  the  actual  custody  and  possession  of  the  towing  boat.^^ 
A  railroad  transporting  a  circus  train  is  not  a  common  carrier, 
but  a  carrier  under  special  contract/"  Neither  is  the  railway 
company  a  common  carrier  in  the  transporting  of  special  trains. 
It  is  not  the  duty  of  the  carrier  as  such  to  carry  by  special  trai"n 
on  demand,  or  to  move  trains  made  of  cars  by  other  persons.*^ 
In  fact,  no  carrier  is  bound  to  transport  all  kinds  of  goods, 
but  only  those  which  he  holds  himself  out  as  carrying.*"  The 
post-office  is  not  a  common  carrier,  neither  are  its  agents,  post- 
masters, mail  contractors,  or  mail  carriers,  since  they  are  merely 
agents  of  the  government  performing  a  public  service,  and  as 
such  are  not  liable  to  action.*^  Telegraph  and  telephone  com- 
panies as  to  the  carrying  of  messages  are  not  common  carriers, 
by  the  weight  of  authority,**  although  the  contrary  has  been 

^'  Murray    v.    International    Steam-  Am.  St.  482 ;  Coup  v.  Wabash,  St.  L. 

ship   Co.,    170   Mass.    166,   48   N.   E.  &  P.  R.  Co.,  56  Mich.  Ill,  22  N.  W. 

1093,  64  Am.  St.  290;  Michigan  Sou-  215,  56  Am.  Rep.  374;  Forepaugh  v. 

thern   &   N.    I.    R.    Co.   v.    Shurtz,   7  Delaware,  L.  &  W.   R.   Co.,   128  Pa. 

Mich.  515 ;  O'Neill  v.  New  York  Cent.  St.  217,   18  Atl.  503,  5  L.  R.  A.  508, 

&  H.  R.  Co.,  60  N.  Y.  138;  Wade  v.  15  Am.  St.  672. 

Wheeler,     3     Lans.     (N.     Y.)     201;  "Hutchinson  Carriers    (3d  ed.),   § 

Schmidt  V.  Chicago  &  N.  W.  R.  Co.,  88 ;  Coup  v.  Wabash,  St.  L.  &  P.  R. 

90  Wis.  504,  63  N.  W.  1057.  Co.,  56  Mich.  Ill,  22  N.  W.  215,  56 

^* Hutchinson   Carriers   (3d   ed.),   §'  Am.  Rep.  374. 

74;    Parson's    Shipping,    174;    Liver  *^  See  cases  cited  in  notes  12  and  23. 

Alkali  Co.  v.  Johnson,  L.  R.  9  Exch.  « Central    R.    Co.    v.    Lampley,    76 

338.  Ala.  357 ;  Boston  Ins.  Co.  v.  Chicago, 

''Hutchinson  Carriers    (3d  ed.),   §  R.   Co.,   118  Iowa  423.  92  N.  W.  88, 

92;  Preston  v.  Biornstad,  L.  R.  (1898)  59  L.  R.  A.  796.     See  ante,  §  120. 

App.  Cas.  513;  Knapp  &c.  Co.  v.  Mc-  '"Tyler  v.  Western  Union  Tel.  Co., 

Caffery,  178  111.  107,  52  N.  E.  898,  69  60  111.  421,  14  Am.  Rep.  38;  Grinnell 

Am.    St.    290;    Varble    v.    Bigley,    14  v.  Western  Union  Tel.  Co.,  113  Mass. 

Bush    (Ky.)    698,  29  Am.   Rep.   435;  299,     18     Am.     Rep.     485;     Western 

Wells    V.    Steam    Nav.    Co..    2    App.  Union   Tel.    Co.   v.    Carew,    15    Mich. 

Div.  (N.  Y.)  204;  Hays  v.  Millar,  11  524;    Leonard    v.    Telegraph    Co.,   41 

Pa.   St.  238;   The  Steamer  Webb,   14  N.  Y.  544;  Western  Union  Tel.  Co. 

Wall.   (U.  S.)  406,  21  L.  ed.  774.  v.  Griswold.  Z1  Ohio  St.  301,  41  Am. 

*"  Chicago,   M.   &   St.    P.   R.   Co.  v.  Rep.    500;    Western    Union    Tel.    Co. 

Wallace,    66   Fed.    506,   30   L.    R.    A.  v.  Mumford,  87  Tenn.  190,  10  S.  W. 

161n;    Robertson   v.    Old   Colony   R.  318,   2   L.    R.   A.   601n,    10    Am.    St. 

Co.,  156  Mass.  525,  31  N.  E.  650,  32  630. 


CARRIERS DISTINCTIONS.  I4I 

held,'*^  Livery  stable  keepers  are  not  common  carriers,*®  nor 
log-driving  companies,"*"  messenger  companies  in  general,*^  nor 
bridge,  canal  and  turnpike  companies,  which  merely  offer  a  road- 
way to  others.^^ 

§129.     Common  carrier's  extraordinary  liability  as  bailee. 

— In  preceding  sections  it  has  been  shown  that  the  innkeeper  is 
held  to  a  greater  degree  of  care  for  the  safety  of  the  baggage  of 
his  guests  than  is  the  ordinary  bailee,  for  the  reason  that  his  em- 
ployment is  public  in  its  nature,  and  the  public  are  generally 
compelled  to  trust  themselves  and  their  effects  to  the  innkeeper. 
Upon  similar  considerations  of  public  policy,  the  law  early  im- 
posed upon  the  common  carrier  an  extraordinary  liability,  and 
made  him  an  insurer  of  the  goods  carried  against  all  loss  or  dam- 
age, save  by  certain  excepted  perils,  which  were  the  act  of  God 
or  the  public  enemy,  agencies  beyond  the  carrier's  control  en- 
tirely. Lord  Holt  early  stated  the  grounds  of  this  doctrine  in 
the  following  words,  which  have  been  accepted  by  later  courts  : 
"This  is  a  politic  establishment,  contrived  by  the  policy  of  the 
law,  for  the  safety  of  all  persons,  the  necessity  of  whose  affairs 
obliges  them  to  trust  these  sorts  of  persons,  that  they  may  be 
safe  in  their  ways  of  dealing ;  for  else  these  carriers  might  have 
an  opportunity  of  undoing  all  persons  that  had  any  dealings  with 
them,  by  combining  with  thieves,  etc.,  and  yet  doing  it  in  such 
a  clandestine  manner  as  would  not  be  possible  to  be  discovered. 
And  this  is  the  reason  the  law  is  founded  upon  in  that  point."^*^ 
But  the  modern  law  of  carriers  has  grown  vastly  between  the 
days  of  wagon  carriers  and  the  present  time,  when  powerful 

**  Central  Union  Tel.  Co.  v.  Brad-  *^  Haskell  v.  Boston  Dist.   Messen- 

bury,  106  Ind.  1,  5  N.  E.  721;  Pacific  ger  Co.,  190  Mass.  189.  76  N.  E.  215, 

Tel.  Co.  V.  Underwood,  37  Nebr.  315,  2  L.  R.  A.  (N.  S.)  1091,  112  Am.  St. 

55  N.  W.  1057,  40  Am.  St.  490 ;  State  324. 

V.  Tel.  Co.,  114  Tenn.  194,  86  S.  W.  "*  Kentucky  &c.  R.  Co.  v.  R.  Co.,  Z7 

390.  Fed.  567;  Exchange  Fire  Ins.  Co.  v, 

^  See  ante,  §  76,  Stanley  V.  Steele,  Delaware   &   Hudson    Canal    Co..    10 

77  Conn.  688,  60  Atl.  640,  69  L.  R.  Bosw.  (N.  Y.)  180;  Grimsby  v.  Chap- 

A.    561;    Copeland    v.    Draper,    157  pell,  5  Rich.  CS.  Car.)  443 ;  Lake  Su- 

Mass.  558,  32  N.  E.  944,  19  L.  R.  A.  perior  &  M.  R.  Co.  v.  United  States, 

283,  34  Am.  St.  314;  Siegrist  v.  Ar-  93  U.   S.  444,  23  L.   ed.  965,   12  Ct. 

not,  86  Mo.  200,  56  Am.  Rep.  425.  CI.  35. 

"Mann   v.   White   River   L.   &   B.  '"Coggs  v.  Bernard,  2  Ld.   Raym. 

Co.,  46  Mich.  38,  8  N.  W.  550.  909. 


142  BAILMENTS, 

railroad,  express  and  navigation  corporations  conduct  by  far  the 
greater  portion  of  the  carrying  business.  The  law  has  gradually 
recognized  the  right  to  limit  the  extraordinary  liability  of  the 
carrier  as  an  insurer,  by  contract,  in  some  jurisdictions  permit- 
ting limitation  only  to  a  small  degree,  yet  the  fact  remains  that 
almost  all  carrying  to-day  is  under  a  special  contract,  and  the 
majority  of  the  cases  which  arise  in  the  courts  with  regard  to 
carriers  of  goods  have  to  do  with  the  construction  of  special 
contracts  of  carriage,  and  with  the  degree  to  which  such  con- 
tracts have  varied  the  common-law  liability  of  the  carrier.  Mod- 
ern conditions  are  such,  however,  that  in  the  matter  of  contract- 
ing there  is  not  an  equality  between  the  parties,  since  most  car- 
riers use  printed  forms  of  contracts  with  many  clauses  and  stipu- 
lations, which  in  most  instances  the  shipper  accepts,  if  he  does  in 
fact  accept  them,  hastily  and  without  a  full  comprehension  of 
their  import  and  effect,  so  that  such  contracts  are  construed 
most  strongly  against  the  carrier.  Here,  again,  enters  an 
avenue  of  conflict,  for  while  a  carrier  is  held  strictly  to  the 
terms  of  his  contract  and  the  shipper  must  assent  to  the  terms  of 
a  printed  form  in  order  to  be  bound  thereby,  yet,  as  we  have 
seen,  the  carrier  is  liable  only  to  the  extent  of  his  holding  out  to 
the  public,  within  the  limits  of  reasonable  rules  and  regulations, 
and  as  the  shipper's  assent  to  these  conditions  of  holding  out  is 
not  essential,  the  question  often  arises,  though  in  some  cases  it 
has  been  lost  sight  of,  as  to  whether  a  certain  stipulation  which 
the  carrier  seeks  to  take  advantage  of  is  merely  a  regulation,  or 
a  part  of  its  holding  out,  or  is  a  provision  of  a  contract,  invalid 
unless  the  shipper  has  assented  thereto.  In  later  sections  this 
question  of  limitation  of  liability  by  contract  will  be  discussed 
at  some  length. 


CHAPTER  IX. 

CREATION  OF  RELATION  OF  COMMON  CARRIER,  AND  BEGINNING  OF 

LIABILITY, 

§  130.  Duty    to    receive    goods    of-  §  135.  Constructive   delivery. 

fered.  136.  Completion  of   delivery  and 

131.  Time  of  delivery  to  carrier.  acceptance   by   carrier. 

132.  Place  of  delivery.  137.  Notice     to     carrier     of     de- 

133.  By  whom   delivery  must  be  livery. 

made.  138.  Delivery  to  connecting  car- 

134.  To  whom  delivery  must  be  rier. 

made.  139.  Carrier's  duty  to  accept. 

§  130.  Duty  to  receive  goods  offered. — As  we  have  seen, 
in  order  to  consider  one  a  common  carrier,  he  must  be  under  such 
a  duty  to  accept  goods  of  the  character  which  he  holds  himself 
out  to  carry,  within  certain  reasonable  restrictions  which  he  may 
make  as  to  the  time,  manner,  and  place  of  delivery,  and  the 
condition  of  the  goods,  that  an  action  will  lie  against  him  for  re- 
fusal to  carry  goods  offered  to  him  for  carriage  which  comply 
with  the  above  requirements.^  In  order  to  impose  upon  any  car- 
rier liability  as  an  insurer,  there  must  be  a  delivery  of  the  goods 
to  him,  and  an  acceptance  of  the  same,  and  liability  as  a  carrier 
does  not  begin  until  the  delivery  has  been  completed  by  accept- 
ance for  carriage.^  In  the  sections  immediately  succeeding  we 
shall  consider  the  various  elements  essential  to  constitute  deliver}^ 
and  acceptance. 

§  131.  Time  of  delivery  to  carrier. — The  delivery  must  be 
made  for  immediate  transportation.  If  the  goods  are  delivered 
to  the  carrier  to  be  held  for  a  certain  time,  or  until  the  happening 

'Nugent  V.   Smith.   L.   R.    1   C.    P.  v.    Columbia  &c.   R.   Co.,    19   S.    Car. 

Div.  19,423;   St.  Louis  S.  W.  R.  Co.  353.    A  statute  imposing  such  a  duty 

v.  State,  85  Ark.  311,  107  S.  W.  1180,  on  a  common   carrier   is   merely   de- 

122  Am.  St.  33 ;  Fish  v.  Chapman,  2  claratory    of    the    common    law.     St. 

Ga.    349,    46    Am.    Dec.    393,    Ocean  Louis  S.  W.  R.  Co.  v.  State,  85  Ark. 

Steamship   Co.   of    Savannah   v.    Sa-  311,  107  S.  W.  1180,  122  Am.  St.  33. 
vannah  Locomotive  &c.   Co,   131   Ga.         "  Schouler      Bailments      (3d      ed.), 

831,  63  S.  E.  577,  20  L.  R.  A.  (N.  S.)  §  284;  Hutchinson  Carriers  (3d  ed.), 

867,  127  Am.  St.  265,  15  Am.  &  Eng.  §§   124.  125;   Elliott  R.  R.    (2d  ed.), 

Ann.  Cas.   1044;  Piedmont  Mfg.   Co.  §§    1454,    1462. 

143 


144 


BAILMENTS. 


of  a  certain  event,  or  until  something  more  is  done  to  them  by  the 
owner,  or  to  be  shipped  in  accordance  with  his  future  orders,  the 
liability  of  a  carrier  has  not  begun,  and  does  not  begin  until  the 
conditions  upon  which  the  goods  are  held  have  been  performed.^ 
If  the  delivery  is  made  for  the  goods  to  be  transported  as  soon  as 
they  can  be  in  the  ordinary  course  of  the  carrier's  business,  and 
delays  to  wdiich  they  are  subject  are  only  those  caused  by  neces- 
sity, or  by  the  carrier's  instrumentality,  the  liability  of  a  common 
carrier  at  once  attaches.'*  This  is  true,  if  the  goods  are  received 
for  transportation  purposes  only,  even  if  the  shipper  is  to  load 
them  into  the  cars.^  A  mere  delivery  to  the  carrier  of  goods 
marked  with  the  name  and  address  of  the  consignee,  in  the  ab- 
sence of  directions  or  agreement,  or  previous  custom  of  dealing, 
imposes  upon  the  carrier  the  obligation  to  forward  the  goods  at 
once,  as  soon  as  the  ordinary  course  of  his  business  permits,  and 
causes  the  common  carrier's  liability  to  attach.^     However,   if 


*Mt.  Vernon  Co.  v.  Alabama  &c. 
R.  Co.,  92  Ala.  296,  8  So.  687 ;  Little 
Rock  &c.  R.  Co.  V.  Hunter,  42  Ark. 
200;  St.  Louis  I.  M.  &  S.  R.  Co.  v. 
Citizens'  Bank.  87  Ark.  26,  112  S.  W. 
154,  128  Am.  St.  17;  Truax  v.  Phila- 
delphia &c.  R.  Co.,  3  Houst.  (Del.) 
233;  Barron  v.  Eldredge,  100  Mass. 
455,  1  Am.  Rep.  126 ;  Rogers  v.  Whee- 
ler, 52  N.  Y.  262;  O'Neill  v.  New 
York  &  H.  R.  R.  Co.,  60  N.  Y.  138; 
Basnight  v.  Atlantic  &c.  R.  Co.,  Ill 
N.  Car.  592,  16  S.  E.  2,22, ;  St.  Louis, 
L  M.  &  S.  R.  Co.  V.  Knight,  7  Sup. 
Ct.  1132,  122  U.  S.  79.  30  L.  ed.  1077; 
note,  97  Am.  St.  84-6;  Elliott  R.  R. 
(2d  ed.),  §  1409,  and  cases  cited; 
Burrowes  v.  Chicago,  B.  &  Q.  R.  Co., 
85  Nebr.  497,  123  N.  W.  1028,  34  L. 
R.  A.  (N.  S.)  220,  in  which  case  a 
car  was  partly  loaded  with  a  tent 
show  on  Saturday  and  the  owner  re- 
tained part  of  the  goods  until  Mon- 
day morning  for  his  own  use,  and  it 
was  held  there  was  no  delivery.  See 
Central  of  Ga.  R.  Co.  v.  Sigma  Lum- 
ber Co.,  170  Ala.  672,  54  So.  205,  Ann. 
Cas.  1912D.  965,  where  cars  were 
loaded  and  left  at  usual  place,  and 
carrier  notified,  but  shipping  direc- 
tions were  yet  to  be  given. 

*  Story  on  Bailments  (3d  ed.), 
§§  534,  536;  North  German  Lloyd  S. 
S.  Co.  V.  Bullen.  Ill  111.  App,  426; 


Fitchburg  &c.  R.  Co.  v.  Hanna,  6 
Gray  (Alass.)  539;  Moses  v.  Boston 
&  M.  R.  R.  Co.,  24  N.  H.  71,  55  Am. 
Dec.  222;  Barter  v.  Wheeler,  49  N. 
H.  9,  6  Am.  Rep.  434;  Witbeck  v. 
Holland,  45  N.  Y.  13,  6  Am.  Rep. 
23;  Blossom  v.  Griffin,  13  N.  Y.  569, 
67  Am.  Dec.  75 ;  Clark  v.  Needles,  25 
Pa.  St.  338.  See  Greene  v.  Louis- 
ville &c.  R.  Co.,  163  Ala.  138,  50  So. 
937,  136  Am.  St.  67,  holding  that  a 
carrier  which  fails  to  move  a  car- 
load of  lumber  within  a  reasonable 
time  after  notice  and  request  from 
shipper  to  do  so  is  liable  for  the 
burning  of  the  lumber  caused  with- 
out other  fault  of  the  carrier;  and 
Garner  v.  St.  Louis,  I.  M.  &  S.  R. 
Co.,  79  Ark.  353,  96  S.  W.  187,  116 
Am.  St.  83,  holding  that  making  out 
a  bill  of  lading  is  not  necessary  to 
complete  delivery. 

^London  &  L.  Fire  Ins.  Co.  v. 
Rome  &c.  R.  Co.,  144  N.  Y.  200,  39 
N.  E.  79,  43  Am.  St.  752. 

'Elliott  R.  R.  (2d  ed.),  §  1409,  and 
cases  cited ;  Grand  Tower  Mfg.  & 
Transp.  Co.  v.  Ullman.  89  111.  244; 
Gregory  v.  Wabash  R.  Co.,  46  Mo. 
App.  574;  Blossom  v.  Griffin,  13  N. 
Y.  569,  67  Am.  Dec.  75;  Witbeck  v. 
Holland,  45  N.  Y.  13.  6  Am.  Rep. 
23;  Clarke  v.  Needles,  25  Pa.  St.  338. 


COMMON    CARRIER LIABILITY.  1 45 

the  relation  of  carrier  has  once  been  established,  and  the  owner 
afterward  gives  orders  to  delay  the  transportation,  it  has  been 
held  that  the  relation  of  carrier  ceases,  and  that  of  warehouse- 
man attaches.' 

§  132.  Place  of  delivery. — In  general  the  carrier  appoints 
the  place  of  delivery,  but,  to  bind  the  carrier,  delivery  need  not 
be  made  at  this  ordinarily  appointed  place,  if  made  at  another 
place  to  an  agent  authorized  to  receive.^  So  delivery  to  the  agent 
of  a  stage  company  at  a  place  other  than  the  carrier's  office  has 
been  held  good.®  On  the  other  hand,  it  is  not  sufficient  to  de- 
liver to  the  driver  of  a  stage  or  express  company  at  a  place  other 
than  the  company's  office,  unless  there  is  evidence  of  authority 
to  receive,^"  though  the  carrier  may  be  made  liable  because  of 
usage  so  to  receive  goods.^^  Usually  goods  must  be  delivered  to 
railroad  companies  at  established  stations,  yet  there  may  be 
shown  a  usage  to  receive  goods  at  an  unusual  place,  as  cotton 
stored  on  or  beside  a  platform  or  in  a  yard.^^ 

§  133.  By  whom  delivery  must  be  made. — The  delivery 
may  be  made  by  the  shipper  himself,  or  by  his  authorized  agent. 
If  an  agent  is  to  deliver  to  a  carrier,  the  latter,  unless  he  knows 
of  some  limitations  upon  the  agent's  authority,  may  consider 
that  the  agent  has  full  powers  to  carry  out  the  purpose  of  the 
agency,  and  the  agent's  directions  and  contract  as  to  the  time, 
manner  of  transportation  or  terms  and  conditions  of  trans- 
portation will  be  binding  on  the  principal,  aiid  he  may  by  con- 
tract-release the  carrier  from  his  common-law  liability.^^     The 

1/  'St.  Louis,  Alton  &  P.  C  R.  Co.  1Z  Ala.  396,  49  Am.  Rep.    54;  Meyer 

V.  Montgomery,  39  111.  335.  v.  Vicksburg  &c.  R.  Co.,  41  La.  Ann. 

*  Georgia  &c.  R.  Co.  v.  Marchman,  639,  6  So.  218,   17  Am.   St.  408;   Ft. 

121  Ga.  235,  48  S.  E.  961 ;  Dwight  v.  Worth  &c.  R.  Co.  v.  Martin,  12  Tex. 

Brewster,  1  Pick.  (Mass.)  50,  11  Am.  Civ.  App.  464,  35  S.  W.  21. 
Dec.    133;    Missouri    &c.    Oil    Co.    v.        "Hutchinson     Carriers     (3d    ed.), 

Hannibal    &c.    R.    Co.,    35    Mo.    84;  §§   108,  467;   Elliott   R.   R.    (2d  ed), 

Blanchard  v.  Isaacs,  3  Barb.  (N.  Y.)  §     1406;     Mechem     Agency.     §    311; 

388;  Cronkite  v.  Wells,  32  N.  Y.  247.  Squire  v.   New   York   Cent.   R.    Co., 

•Phillips  V.  Earle,  8  Pick.  (Mass.)  98  Mass.  239,  93  Am.  Dec.  162;  Rus- 

182.  sell  V.  Erie  R.  Co.,  70  N.  J.  L.  808. 

"Blanchard  v.  Isaacs,  3  Barb.  (N.  1  Am.  &  Eng.  Ann.  Cas.  672,  59  Atl. 

Y.)  388.  150,  67  L.  R.  A.  433;  Nelson  v.  Hud- 

"See    post,    §    135,    Constructive  son  River  R.  Co.,  48  N.  Y.  498;  York 

Delivery.  Mfg.  Co.  v.  Illinois  Cent.  R.  R.  Co..  3 

^Montgomery  &c.  R.  Co.  v.  Kolb,  Wail.    (U.    S.)    107,    18   L.   ed.    170; 
Bailments — 10 


146  BAILMENTS. 

initial  carrier  to  which  goods  are  delivered  to  be  delivered  to  an- 
other carrier  at  the  end  of  its  route  may  be  the  owner's  agent  to 
deliver  to  such  second  carrier."  The  placing  of  goods  in  the 
hands  of  an  ordinary  drayman,  however,  to  deliver  to  a  carrier 
/aoes  not  make  him  the  owner's  agent  to  release  the  carrier  from 
his  liability  as  insurer.^^  \The  consignor  is  the  agent  of  the  con- 
signee in  shipping  goods  and  whatever  contract  he  makes  with  the 
carrier  generally  binds  the  consignee,  so  that  if  the  consignor  se- 
lects a  car  unsuitable  for  certain  goods,  the  defects  being  apparent 
upon  inspection  of  the  car,  the  carrier  is  not  liable.^"  It  has  been 
held  that  if  the  contract  of  shipment  is  made  directly  with  the 
consignee  he  may  sue  in  his  own  name  for  a  breach  of  contract, 
without  reference  to  the  ownership  of,  or  property  in,  the  goods.^^ 

§  134.  To  whom  delivery  must  be  made. — The  delivery 
may  be  made  to  the  carrier's  agent,  and  a  placing  of  a  person  in 
charge  of  a  place  ordinarily  used  by  the  carrier  for  the  reception 
of  goods,  and  holding  him  out  as  a  representative  to  receive  and 
accept  goods,  will  cause  his  acts  in  such  a  capacity  to  bind  the 
carrier.^®  It  has,  therefore,  been  held  that  a  passenger  is  justified 
in  considering  a  man  whom  he  sees  handling  baggage  as  the  agent 
of  the  company,^^  that  if  goods  are  delivered  to  one  in  a  freight 
office  who  receives  and  receipts  for  the  goods  with  the  knowl- 
edge of  the  agent  who  does  not  object,  it  is  a  delivery  to  the  car- 
rier,^" and  that  placing  a  trunk  beside  a  locked  baggage  crate  at 
the  depot,  and  informing  the  ticket  agent,  who  answered,  "All 
right,"  is  a  delivery  to  the  carrier,  even  though  another  person 
had  charge  of  the  receiving  of  freight,  upon  the  ground  that  the 

Benson  v.  Oregon  Short  Line  Co.,  35  "Chicago  &  A.  R.  Co.  v.  Shea,  66 

Utah  241,  99  Pac.  1072,   136  Am.  St.  111.  471;   Southern  Kansas  R.  Co.  v. 

1052,  19  Am.  &  Eng.  Ann.  Cas.  803.  Morris,  100  Tex.  611,  102  S.  W.  396, 

"  See  §  253  on  Delivery  to  Connect-  123    Am.    St.    834.     And    see    Great 

ing  Carrier;    Harrington  v.   Wabash  Western  R.  Co.  v.  McComas,  33  111. 

R.  Co..  108  Minn.  257,  122  N.  W.  14,  185. 

23  L.  R.  A.  (N.  S.)  745n.  ''Harrell  v.  Wilmington  &c.  R.  Co., 

^^  Russell  V.  Erie  R.  Co..  70  N.  J.  106  N.  Car.  258,  11  S.  E.  286,  42  Am. 

L.  808,  7  Am.  &  Eng.  Ann.  Cas.  672;  &  Eng.  R.  Cas.  417.     See  Elliott  R. 

Benson  v.  Oregon  Short  Line  Co.,  35  R.   (2d  ed.),  §  1406  and  cases  cited. 

Utah  241,  99  Pac.  1072,  136  Am.  St.  "Ouimit  v.   Henshaw,  35  Vt.  605, 

1052.  19  Am.  &  Eng.  Ann.  Cas.  803.  84  Am.  Dec.  646. 

"  Frohlich  v.   Pennsylvania  R.  Co.,  *"  Harrell  v.  Wilmington  &c.  R.  Co., 

138  Mich.  116,  101  N.  W.  223,  110  Am.  106  N.  Car.  258,  11  S.  E.  286,  42  Am. 

St.  310.  &  Eng.  R.  Cas.  417. 


COMMON    CARRIER LIABILITY.  I47 

company  held  out  the  ticket  agent  to  the  world  as  in  charge  of 
the  depot.^^  Delivery  to  a  drayman  or  servant  of  the  carrier  who 
is  accustomed  to  receive  goods  for  the  carrier  at  the  place  of 
business  of  the  patrons  is  a  good  delivery  to  the  company. ^^  But 
delivery  to  one,  the  nature  of  whose  employment  is  such  that 
he  could  not  reasonably  be  thought  to  have  authority  to  receive, 
is  not  a  delivery  to  the  carrier,  unless  there  is  shown  that  such 
person  had  in  fact  or  by  custom  authority  to  receive."^  This  ap- 
plies to  delivery  to  deck-hands  on  a  boat.-*  The  agent  at  one 
station  may  have  a  right  to  contract  for  a  shipment  from  an- 
other place,  but  if  such  is  claimed  the  plaintiff  must  prove  it.^' 

§  135.  Constructive  delivery. — By  a  particular  agreement 
between  the  parties,  or  particular  course  of  dealing  between  them, 
or  by  usage,  delivery  may  be  made  by  depositing  goods  at  cer- 
tain places,  without  their  actual  acceptance  either  by  the  carrier  or 
an  agent  authorized  to  receive  them,  and  even  without  express 
notice  to  the  carrier,  and  this  is  held  a  constructive  delivery  to  the 
carrier.^"  Examples  are  the  depositing  of  goods  upon  the  private 
wharf  of  the  carrier,  where  it  was  accustomed  to  receive  and 
transport  goods  thus  left,^^  or  the  leaving  of  a  trunk  in  the  wait- 
ing-room of  a  station,  the  employes  being  at  supper,  proof  having 
been  made  that  drayman  leaving  the  trunk  had  often  left  trunks 

"" Rogers  v.  Long  Island  R.  Co.,  2  192;  Phillips  v.  Earle,  8  Pick.  (Mass.) 

Lans.    (N.   Y.)    269.  182;  Missouri  Coal  &  Oil  Co.  v.  Han- 

^'Davey  v.   Mason,  Car.  &  M.  45;  nibal   &   St.   J.    R.    Co.,   35    Mo.   84; 

Baxendale  v.  Hart,  6  Exch.  769;  Wil-  Cronkite  v.  Wells,  32  N.  Y.  247. 

mington  Dental   Mfg.   Co.  v.  Adams  '^Hutchinson   Carriers    (3d  ed.),   § 

Exp.    Co.,    8    Houst.    (Del.)    329,    32  115;  Southern  R.  Co.  v.  Bickley,  119 

Atl.    250;    Quarrier    v.    Baltimore    &  Tenn.  528,    107   S.  W.  680,   14  L.   R. 

O.  R.  Co.,  20  W.  Va.  424,  18  Am.  &  A.  (N.  S.)  859n,  123  Am.  St.  754.  14 

Eng.  R.  Cas.  535.  Am.  &  Eng.  Ann.  Cas.  910.     See  also, 

^Hutchinson  Carriers   (3d  ed.),   §  Ethridge  v.   Central   of   Ga.   R.   Co., 

107;  Elliott  R.  R.   (2d  ed.),  §§  1407,  136  Ga.  677.  71  S.  E.  1063,  Ann  Cas. 

1408  and  cases  cited.  1912D.  128  and  note.    See  cases  cited 

'^  Trowbridge  v.   Chapin,  23   Conn,  in  notes  27  to  30. 

595;  Ford  v.  Mitchell,  21  Ind.  54.  =' Merriam  v.  Hartford  &c.  R.  Co., 

"McManus  v.  Chicago  Great  20  Conn.  354,  52  Am.  Dec.  344;  Con- 
Western  R.  Co.,  138  Iowa  150.  115  verse  v.  Norwich  &c.  Transportation 
N.  W.  919,  128  Am.  St.  180;  Voor-  Co..  33  Conn.  166.  See  Truax  v. 
hees  V.  Chicago,  R.  I.  &  P.  R.  Co.,  Philadelphia  &c.  R.  Co.,  3  Houst. 
71  Iowa  735,  30  N.  W.  29,  60  Am.  (Del.)  233,  and  Washburn  Crosby 
Rep.  823;  Burgher  v.  Chicago,  R.  I.  Co.  v.  Boston  &c.  R.  Co.,  180  Mass. 
&  P.  R.  Co.,  105  Iowa  335,  75  N.  W.  252,  62  N.  E.  590. 


148  BAILMENTS. 

similarly  before/®  or  leaving  cotton  upon  a  platform  erected  to 
receive  cotton  for  shipment,  or  in  the  street  along  such  platform 
in  accordance  with  custom,^^  or  depositing  hay  at  the  usual  place 
of  loading  hay,  in  following  the  usage  of  the  parties.^**  In  all 
these  cases,  however,  there  must  be  shown  either  agreement  or 
usage,  and  one  cannot  deliver  goods  to  a  carrier  by  simply  depos- 
iting them  along  its  line,  in  the  absence  of  agreement  or  usage  to 
give  to  the  carrier  constructive  notice.  "Where  one,  intending  to 
become  a  passenger,  sent  his  trunk  to  a  boat,  and  failed  to  go 
upon  the  boat  as  a  passenger,  although  it  was  shown  that  the 
trunk  was  delivered  by  a  customary  method,  it  was  held  that 
there  was  shown  no  usage  to  receive  freight  in  this  manner,  as 
the  trunk,  unaccompanied  by  its  owner,  was  freight  and  not  bag- 
gage, and  that  there  had  been  no  delivery.^^  The  delivery  of  a 
baggage  check  by  one  carrier  to  another  is  not  such  a  constructive 
delivery  of  the  baggage  as  to  charge  the  carrier  accepting  the 
check  before  the  baggage  actually  comes  into  its  possession.^^ 

§  136.     Completion  of  delivery  and  acceptance  by  carrier. 

— In  actions  against  carriers,  it  is  frequently  extremely  impor- 
tant to  know  just  when  the  carrier's  liability  attaches  by  comple- 
tion of  delivery.  The  general  rule  is  that  when  goods  have  been 
tendered  to  the  carrier,  his  liability  begins  the  instant  he  accepts 
them,  but  to  make  the  delivery  and  acceptance  complete  the  goods 
must  be  placed  in  his  sole  possession  and  custody,  and  the  owner 
must  have  abandoned  all  control  over  them  for  the  purpose  of 
the  bailment.^^  Formal  acceptance  by  the  carrier  is  not  neces- 
sary.^*   Delivery  to  a  vessel  is  completed  when  the  master,  mate, 

**  Green  v.  Milwaukee  &  St.  P.  R.  to  a  carrier  a  delivery  of  goods  to 

Co.,  41  Iowa  410,  38  Iowa  100.  him.      Stewart    v.    Gracy,    93    Tenn. 

^Montgomery  &c.  R.   Co.  v.  Kolb  314,  27  S.  W.  664. 

&    Hardaway,    11    Ala.    396,    49   Am.  "^Illinois   Cent.   R.   Co.   v.    Smyser, 

Rep.  54;  Meyer  v.  Vicksburg  &c.  R.  38  111.  354,  87  Am.  Dec.  301;  Merritt 

Co.,  41  La.  Ann.  639,  6  So.  218,   17  v.  Old  Colony  &  N.  R.  Co.,  11  Allen 

Am.   St.   408.  (Mass.)  80;  Stapleton  v.  R.  Co.,  133 

""  Evansville  &c.  R.  Co.  v.  Keith,  8  Mich.  187,  94  N.  W.  739;  Doan  v.  St. 

Ind.  App.  57,  35  N.  E.  296.  Louis,  K.  &  N.  R.  Co.,  38  Mo.  App. 

="  Wright  V.  Caldwell,  3  Mich.  51.  408;  East  Line  &c.  R.  Co.  v.  Hall,  64 

''Southern   R.   Co.   v.   Bickley,   119  Tex.   615. 

Tenn.  528,   107  S.  W.  680,   14  L.  R.  ^*  Aiken  v.  Chicago  &c.  R.  Co..  68 

A.  (N.  S.)  859n,  123  Am.  St.  754,  14  Iowa  Z(i2,,  27  N.  W.  281;  Merriam  v. 

Am.  &  Eng.  Ann.  Cas.  910.     Nor  is  Hartford  &c.  R.   Co.,  20  Conn.  354, 

the   delivery   of   warehouse    receipts  52  Am.  Dec.  344. 


COMMON    CARRIER LIABILITY.  I49 

or  any  agent  of  the  owner  receives  the  goods,  whether  this  be 
upon  the  ship,  upon  the  beach,  at  a  warehouse,  or  at  any  other 
place  where  such  authorized  agent  may  agree  to  receive  them.^' 
So  Hability  may  attach  where  a  lighterman,  employed  by  a  vessel 
whose  draft  is  too  great  to  come  to  a  wharf,  receipts  for  and 
loads  cotton  upon  his  boat,^"'  or  when  freight  is  delivered  to  a 
steamboat  employed  by  the  agent  of  an  ocean  steamer,  which 
could  not  reach  the  port  to  take  the  passengers  and  freight,  for 
the  purpose  of  taking  passengers  and  freight  to  the  steamer,'^ 
or  as  soon  as  receipts  have  been  given  for  goods  in  warehouses,'* 
and  a  vessel  or  a  railroad  company  is  responsible  from  the  time 
of  delivery  in  fact,  even  though  receipts  are  not  made  out  until 
after  the  destruction  of  the  property  delivered.^^  It  is  held  that 
ferrymen  are  responsible  as  common  carriers  from  the  moment 
goods  are  brought  upon  the  drop  or  wharf  of  their  boat,*"  but 
the  better  authority  holds  ferrymen  not  common  carriers  unless 
property  is  given  into  their  entire  custody/^  It  is  usually  held 
that  the  carrier  has  accepted  the  goods  from  the  time  when  he 
commences  to  load  them  upon  his  conveyance. 

§  137.  Notice  to  carrier  of  delivery. — There  can  be  no  ac- 
ceptance by  the  carrier  without  notice  of  delivery,  but,  in  certain 
cases,  especially  those  of  constructive  delivery,  such  notice  may  be 
constructive  rather  than  actual.^-  The  mere  fact  that  the  owner  of 
the  goods  has  placed  them  upon  a  car  does  not  ordinarily  consti- 
tute a  delivery,  but  to  complete  the  delivery  the  owner  must  re- 

^^ Hutchinson  Carriers   (3d  ed.),  §  Allen  (Mass.)  80;  Snow  v.  Carruth, 

120;    Story   Bailments    (9th    ed.),    §  1  Sprague's  Dec.  (U.  S.)  324. 

534;  Abbott  Shipping,  ch.  3,  §  3.  «Blakeley  v.  Le  Due.  19  Minn.  187; 

^'Insurance  Co.  of  N.  America  v.  Cohen  v.  Hume,  1  McCord  (S.  Car.) 

North   German   Lloyd   Co.,   106  Fed.  439;   Miles  v.  James.  1   McCord   (S. 

973;     same     case,      Nord-Deutscher  Car.)   157;  Cook  v.  Gourdin,  2  Nott 

Lloyd     V.     Insurance     Co.     of     N.  &  McCord  (S.  Car.)  19. 

America,   110  Fed.  420,  49  C.   C.  A.  "^  White    v.    Winnisimmet     Co.,    7 

1;  Bulkley  v.  The  Naumkeag  Steam  Cush.      (Mass.)      155;     Wyckoff     v. 

Cotton    Co.,   24   How.    (U.    S.)    386,  Queen's  County  Ferry  Co.,  52  N.  Y. 

16  L.   ed.   599;   The  Bark  Edwin,   1  32,  11  Am.  Rep.  650. 

Sprague's  Dec.   (U.  S.)   477.  *^ Hutchinson  Carriers   (3d  ed.).   § 

^The  Oregon,  Deady  (U.  S.)  179.  118;  EHiott  R.  R.   (2d  ed.),  §  1410; 

*'  Greenwood    v.     Cooper,     10    La.  Merriam  v.  Hartford  &  N.  H.  R.  Co., 

Ann.  796.  20  Conn.  354.  52  Am.  Dec.  344;  Con- 

°' Thomas    v.    Day,    4    Esp.    262;  verse  v.  Norwich  &c.  Transportation 

Merritt  v.  Old  Colony  &c.  R.  Co..  11  Co.,  33  Conn.  166;  Green  v.  Milwau- 


150  BAILMENTS. 

linquish  his  control  and  the  carrier  must  have  notice  that  the 
goods  are  ready  for  shipment,  and  where  the  owner  of  the  goods 
has  done  all  that  he  is  required  to  do,  and  the  carrier  is  informed 
that  they  are  ready  for  him,  he  is  considered  to  have  accepted 
them  at  the  time  he  receives  notice.  Where  a  car  loaded  with 
lumber  by  the  shipper  burned  before  the  carrier  was  notified  that 
it  was  ready  for  shipment,  the  shipper  had  to  stand  the  loss." 
Similarly,  where  a  car  had  been  left  on  a  side-track  to  be  loaded 
with  cotton,  and  the  customary  method  of  notifying  the  company 
was  by  flagging  a  train,  and  after  the  car  was  loaded,  but  before 
the  coming  of  the  train  upon  which  it  was  to  be  taken,  the  cotton 
burned,  the  carrier  was  not  liable/*  But  where,  in  the  course 
of  business,  the  company  left  cars  to  be  loaded,  and  it  was  the 
custom  for  the  agent  to  make  out  bills  of  lading  when  the  cotton 
was  placed  on  the  cars,  and  send  locomotives  to  move  them,  it 
was  held  that  the  company  was  liable  as  soon  as  the  cars  were 
loaded,  and  the  agent  informed.*^  Loading  into  cars  is  not  usually 
a  sufficient  delivery  unless  the  carrier's  agent  is  notified  and  the 
owner  has  relinquished  control.*®  Notifying  a  carrier  that  a  car 
on  a  private  switch  is  loaded  and  ready  for  transportation  will 
not  charge  the  carrier  with  liability  as  an  insurer  where  no  bill 
'of  lading  has  been  presented  for  signing,  and  the  rule  of  the 
carrier  is  not  to  move  cars  from  the  station  until  the  bill  of  lad- 
ing is  signed,  when  the  car  is  not  actually  in  its  possession.*'  If 
the  carrier  has  actually  undertaken  the  transportation  of  the 
goods  offered,  it  is  not  necessary  to  show  an  express  acceptance, 
but  acceptance  will  be  implied.*^  Entry  upon  a  waybill,  issuance 
of  bill  of  lading,  or  checking  of  baggage  is  not  essential  to  com- 
plete delivery,  if  there  be  an  acceptance  in  fact.*^ 

kee  &  St.   P.   R.   Co.,   38  Iowa   100,  Nashville  &c.   R.   Co.,   124  Tenn.  57, 

41  Iowa  410.  134  S.  W.  613,  32  L.  R.  A.   (N.  S.) 

*^Basnight  v.   Atlantic  &c.   R.   Co.,  323. 

Ill  N.  Car.  592,  16  S.  E.  323.  ** Aiken  v.  Chicago  &c.  R.  Co.,  68 

**  Tate   V.    Yazoo    &c.    R.    Co.,    78  Iowa  363,  27  N.  W.  281. 

Miss.   842,   29   So.   392,   84   Am.    St.  **  St.  Louis  &c.  R.  Co.  v.  Burrow, 

649.  89  Ark.  178,  116  S.  W.  198;  Hickox 

**  Illinois  Central  R.  Co.  v.  Smyser,  v.   Naugatuck  R.   Co.,  31   Conn.  281. 

38  III.  354,  87  Am.  Dec.  301.  83    Am.    Dec.    143;    Illinois    Central 

« Kansas   Citv  &c.   R.   Co.  v.   Cox,  R.    Co.    v.    Smyser,    38    111.    354,    87 

25  Okla.  774,  108  Pac.  380,  32  L.  R.  Am.   Dec.   301;    Meloche  v.   Chicago 

A.  (N.  S.)  313.  &c.  R.  Co.,  116  Mich.  69,  74  N.  W. 

*^  American    Lead    Pencil     Co.     v.  301;   Coyle  v.  Western   R.   Corp.  47 


COMMON    CARRIER LIABILITY. 


151 


§  138.  Delivery  to  connecting  carriers. — The  duty  to  ac- 
cept goods  for  carriage  beyond  the  destination  of  the  carrier,  and 
what  constitutes  delivery  to  connecting  carriers,  will  be  consid- 
ered in  succeeding  sections.^" 

§  139.  Carrier's  duty  to  accept. — No  common  carrier  pro- 
fesses to  carry  all  kinds  of  goods,  and  no  one  is  liable  for  a  re- 
fusal to  carry  goods  unless  it  can  be  shown  that  the  goods  offered 
were  those  which  he  ordinarily  tarried,  or  because  of  the  public 
nature  of  his  business,  was  bound  to  carry.®^  It  has  been  held 
that  a  railroad  carrier,  which  maintains  within  a  city  a  freight  line 
and  separate  tracks  to  industrial  plants,  cannot  refuse  to  carry 
freight  from  one  part  of  the  system  to  another,  on  the  ground 
that  he  is  not  a  common  carrier  within  switching  limits.^"  A  carrier 
may  refuse  to  receive  goods  not  properly  packed'^^  or  of  a  danger- 
ous character/*  or  which  he  believes  for  good  reason  are  of  a  dan- 
gerous character.®^  Ordinarily  the  carrier  has  not  the  right  to  re- 
quire a  shipper  who  offers  goods  to  disclose  their  nature,  but  if  he 


Barb.  (N.  Y.)  152;  East  Line  &  Red 
River  R.  Co.  v.  Hall.  64  Tex.  615. 

="See  §§  247-253  infra. 

^Hutchinson  Carriers,  §  144;  El- 
liott R.  R.  (2d  ed.),  §§  1414a,  1465, 
1466;  Dickson  v.  Great  Nor- 
thern R.  Co.,  18  Q.  B.  Div.  176; 
Pickford  v.  Grand  Junction  R.  Co., 
12  Mees.  &  W.  766;  Tunnel  v.  Petti- 
john,  2  Harr.  (Del.)  48;  Harp  v. 
Choctaw,  O.  &  G.  R.  Co.,  118  Fed. 
169,  afifd.  125  Fed.  445,  61  C.  C.  A. 
405;  Southern  Express  Co.  v.  R.  M. 
Rose  Co.,  124  Ga.  581,  53  S.  E.  185,  5 
L.  R.  A.  (N.  S.)  619n;  Ocean  Steam- 
ship Co.  V.  Savannah  Locomotive 
Works  &c.  Co.,  131  Ga.  831,  63  S.  E. 
577,  20  L.  R.  A.  (N.  S.)  867,  127 
Am.  St.  265;  Pittsburg,  C.  &  St.  L. 
R.  Co.  v.  Morton,  61  Ind.  539,  28 
Am.  Rep.  682;  Powell  v.  Mills,  30 
Miss.  231,  64  Am.  Dec.  158;  Kemp  v. 
Coughtry,  11  Johns.  (N.  Y.)  107; 
King  v.  Lennox.  19  Johns.  (N.  Y.) 
235,  30  Am.  Dec.  635;  Beckman  v. 
Shouse.  5  Rawle  (Pa.)  179,  28  Am. 
Dec.  653.  There  is  no  presumption 
that  a  common  carrier  which  trans- 
ports merchandise  or  parcels  by  mes- 
senger holds  itself  out  as  a  common 
carrier  of  money,  and  if  it  does  not 


customarily  carry  money,  it  is  not 
liable  in  the  absence  of  notice  for 
the  loss  of  money  contained  in  an  en- 
velope delivered  to  a  messenger. 
White  V.  Postal  Telegraph  &c.  Co., 
25  App.  Cas.  (D.  C.)  364,  4  Am.  & 
Eng.  Ann.  Cas.  767.  A  railroad  com- 
pany which  does  not  undertake  to 
carry  dogs  is  not  bound  to  carry  a 
dog.  Honeyman  v.  Oregon  &c.  R. 
Co.,  13  Ore.  352,  10  Pac.  628,  57 
Am.  Rep.  20. 

"^Higdon  V.  Louisville  &  Nash- 
ville R.  Co.,  143  Ky.  IZ,  135  S.  W. 
768.  Zi  L.  R.  A.   (N.  S.)  442. 

"  Sutcliffe  V.  Great  Western  R.  Co. 
(1910),  1  K.  B.  478,  18  Am.  &  Eng. 
Ann.  Cas.  224  and  note;  Truax  v. 
Philadelphia  &c.  R.  Co.,  3  Houst. 
(Del.)  233;  Ohlen  v.  Atlanta  &c.  R. 
Co.,  2  Ga.  App.  323,  58  S.  E.  511; 
Fitzgerald  v.  Adams  Express  Co.,  24 
Ind.  447,  87  Am.  Dec.  341;  Union 
Express  Co.  v,  Graham,  26  Ohio  St. 
595. 

***  California  Powder  Works  v.  At- 
lantic &  P.  R.  Co.,  113  Cal.  329.  45 
Pac.  691,  36  L.  R.  A.  648;  The  Nith, 
36  Fed.  86,  13  Sawy.   (U.  S.)  368. 

"^^The  Nitro-glycerine  Case,  15 
Wall.    (U.    S.)    524,   21   L.   ed.   206. 


152  BAILMENTS. 

has  good  ground  for  believing  them  of  dangerous  character,  it  is 
his  duty  to  ascertain  whether  such  is  the  case,^®  and  a  shipper  who 
dehvers  explosives  or  goods  of  dangerous  character  to  the  car- 
rier must  inform  him  of  their  nature,  and,  failing  to  do  so,  is 
liable  in  damages  for  resultant  injuries  to  the  carrier's  vehicle  or 
cargo.^^  He  may  refuse  if  there  is  extraordinary  danger  of  the 
loss  of  the  goods,  as  from  amob,^^  or,  it  seems,  if,  although  he  has 
provided  means  and  facilities  sufficient  to  accommodate  the  busi- 
ness ordinarily  to  be  expected,  he  finds  that  for  the  time  being,  on 
account  of  press  of  business,  he  cannot  possibly  carry  the  goods 
offered, °®  as  where  there  is  an  unusual  amount  of  freight  arising 
from  an  excessive  crop  of  cotton,  greater  than  the  estimates 
made  by  the  carrier  or  the  crop  experts.®"  But  if  the  freight  is 
accepted  and  the  shipper  is  not  notified  of  the  unusual  press  of 
business,  the  carrier  is  liable  for  delay,^^  and  it  is  not  a  defense 
for  failure  to  carry  that  the  carrier  is  unable  to  regain  cars  sent 
to  other  roads  carrying  freight  from  the  defendant's  line,  when 
the  carrier  had  lost  control  of  the  cars  knowing  that  the  rules 
for  their  return  were  not  sufficient  to  insure  return  in  proper  time 
to  handle  the  business  ordinarily  to  be  expected.®^  The  carrier 
who  for  good  cause  believes  that  the  person  offering  the  goods  is 
not  authorized  to  deliver  them  for  carriage  may  refuse  to  receive 

"^The     Nitro-glycerine     Case,     15  "^Lovett  v.   Hobbs,  2  Shower  127; 

Wall.    (U.    S.)    524,   21    L.    ed.   206.  Riley  v.  Home,  5  Bing.  217 ;  Helliwell 

"Williams    v.    East    India    Co.,    3  v.    Grand    Trunk    R.    of    Canada,    7 

East    192;    International    Mercantile  Fed.  68,  10  Biss.  (U.  S.)  170;  Ocean 

Marine   Co.    v.    Eels,    170    Fed.    275,  Steamship   Co.   of   Savannah   v.    Sa- 

95    C.    C.    A.    471,    18   Am.    &    Eng.  vannah  Locomotive  Works  &  Supply 

Ann.   Cas.   18  and  note;   Wellington  Co.,  131  Ga.  831,  63  S.  E.  577.  20  L. 

V.    Donner    Kerosene    Oil    Co.,    104  R.  A.    (N.   S.)    867,   15  Am.  &  Eng. 

Mass.  64;   Waters-Pierce  Oil   Co.  v.  Ann.  Cas.  1044;  Yazoo  &  Mississippi 

Deselms,  212  U.   S.  159,  29  Sup.  Ct.  Valley    R.    Co.    v.    Blum,    89    Miss. 

270,  53  L.  ed.  453.  242,  42  So.  282,  10  L.  R.  A.  (N.  S.) 

'*  Edwards  v.  Sherratt,  1  East  604;  432,   11   Am.   &   Eng.   Ann.   Cas.  272 

Phelps  V.  Illinois  Co.,  94  111.  548;  II-  and  note;  Cole  v.  Goodwin,  19  Wend, 

linois    Central   R.    Co.   v.   McClellan,  (N.  Y.)  251,  32  Am.  Dec.  470;  Peet 

54   111.   58,   5   Am.    Rep.   83 ;    Illinois  v.  Chicago  &  N.  W.  Ry.  Co.,  20  Wis. 

Central   R.   Co.   v.   Ashmead,   58  111.  594,  91  Am.  Dec.  446. 

487 ;  Illinois  Central  R.  Co.  v.  Horn-  *"  Yazoo  &  Mississippi  Valley  R.  Co. 

berger,  11  111.  457;  Pearson  v.  Duane,  v.  Blum.  89  Miss.  242,  42  So.  282,  10 

4  Wall.   (U.  S.)   605,   18  L.  ed.  447.  Am.  &  Eng.  Ann.  Cas.  272  and  note. 

Or  where  a  strike  would  prevent  for-  ^  Daoust  v.   Chicago,   Rock  Island 

warding  the  goods  if  received.  Mur-  &  Pacific  R.  Co.,  149  Iowa  650,   128 

phy   Hdw.   Co.   v.   Southern   R.   Co.,  N.  W.  1106,  34  L.  R.  A.  (N.  S.)  tZI, 

150  N.  Car.  703,  64  S.  E.  873,  22  L.  "St.  Louis  S.  W.  R.  Co.  v.  State 
R.  A,  (N.  S.)  1200  and  note. 


COMMON    CARRIER — LIABILITY. 


153 


them.^^  He  may  require  payment  of  freight  charges  in  advance, 
and  refuse  to  carry  unless  these  are  paid,  for  though  the  law  re- 
quires him  to  carry  for  all  it  does  not  require  him  to  carry  on 
credit.^*  It  is  not  necessary,  however,  for  the  owner  to  pay  in 
advance  unless  demand  is  made,  or  unless  he  knows  of  a  rule  of 
the  carrier  making  such  payment  imperative. ^^  It  has  been  held 
that  it  is  not  discrimination  to  require  prepayment  of  freight 
from  one  shipper,  though  extending  credit  to  others  similarly  sit- 
uated.*^' If  the  carrier  actually  accepts  for  transportation  goods 
which  he  might  have  refused,  he  is  held  to  have  waived  the 
grounds  of  refusal,  and  to  be  an  insurer  as  in  other  cases. ^^ 


85  Ark.  311,  107  S.  W.  1180.  122  Am. 
St.  33. 

''Fitch  V.  Newberry,  1  Doug. 
(Mich.)  1,  40  Am.  Dec.  33. 

"Elliott  R.  R.  (2d  ed.),  §  1466; 
Bastard  v.  Bastard,  2  Shower  81 ; 
Pickford  v.  Grand  Junction  R.  Co., 
8  Mees.  &  W.  372 ;  Galena  &  Chicago 
Union  R.  Co.  v.  Rae,  18  111.  488,  68 
Am.  Dec.  574;  Shipper  v.  Pennsyl- 
vania R.  Co.,  47  Pa.  St.  338. 

®* Hutchinson  Carriers  (3d  ed.),  § 
ISO;  EHiott  R.  R.  (2d  ed.),  §  1558. 

"  Gamble  -  Robertson     Clommission 


Co.  V.  Chicago  &c.  R.  Co.,  168  Fed. 
161,  93  C.  C.  A.  217,  21  L.  R.  A.  (N. 
S.)  982n,  16  Am.  &  Eng.  Ann.  Cas. 
613. 

*' Great  Northern  &c.  R.  Co.  v. 
Shepherd.  8  Exch.  30.  14  Eng.  L.  & 
Eq.  367,  21  L.  J.  Ex.  286;  Cincinnati, 
N.  O.  &  T.  P.  R.  Co.'s  Receiver  v. 
Webb,  103  Ky.  705,  20  Ky.  L.  330, 
46  S.  W.  11;  Porcher  v.  Northeast- 
ern R.  Co.,  14  Rich.  L.  (S.  Car.) 
181;  Hannibal  &c.  R.  Co.  v.  Swift, 
12  Wall.  (U.  S.)  262,  20  L.  ed.  423; 
The  David  &  Caroline.  5  Blatch.  (U. 
S.)  266. 


iP^^^^     > 


CHAPTER  X. 


BILLS   OF   LADING. 

§  140.  What  a  bill  of  lading  is.  §  145.  Bill  of  lading  as  a  contract. 

141.  Dual  capacity  of  bill  of  lad-  146.  Conflict  between  bill  of  lad- 

ing as  receipt  and  contract.  ing    and    parol    contract. 

142.  Authority    to    give     bill     of  147.  Mutual  assent. 

lading.  148.  Transfer    of    title    to    goods 

143.  Operation   of   bill    of   lading  by  transfer  of  bill  of  lad- 

as  receipt.  ing. 

144.  Recitals  in  bill  of  lading  as         149.  Bill  of  lading  as  evidence  of 

to    condition    or    character  title. 

of  goods  received.  150.  Bill  of  lading  virith  draft  at- 

tached. 

§  140.  What  a  bill  of  lading  is. — The  significant  feature 
in  the  relationship  between  a  shipper  and  a  common  carrier  of 
goods  is  that  the  carrier  is  held  by  law  to  be  the  insurer  of  the 
goods  against  loss  during  the  existence  of  the  relation,  with  the 
exception  of  certain  perils  later  discussed.^  It  is  not  necessary 
that  a  bill  of  lading  or  any  writing  should  be  given  to  subject 
him  to  this  liability,  but  as  soon  as  delivery  and  acceptance  are 
completed,  as  seen  in  a  former  section,  the  carrier  becomes  liable 
for  the  goods  as  an  insurer,  as  well  as  for  the  carrying  of  them 
according  to  directions.'  Usually  the  carrier,  at  or  about  the  time 
of  the  acceptance  of  the  goods,  makes  out  and  delivers  to  the 
shipper  a  bill  of  lading,  or  receipt,  which  is  intended  to  serve 
as  evidence  of  the  transaction  between  them.  No  certain  form  is 
essential.^  This  writing  contains,  as  a  rule,  a  description  of  the 
goods,  an  acknowledgment  of  their  receipt  by  the  carrier,  the 
names  of  the  consignor  and  the  consignee  and  the  place  of  con- 
signment, a  contract  to  carry  the  goods  to  their  destination  and 

'See   §    129.  R.   Cas.   133;  Pollard  v.  Vinton,   105 

^See  §  136.     Hutchinson  Carriers  U.  S.  7,  26  L.  ed.  998;  Mobile  &  M. 

(3d  ed).   §    152;   Elliott   R.   R.    (2d  R.   Co.   v.   Jurey,   111   U.    S.  584,  28 

ed.),   §   1415;   Missouri,  K.  &  T.   R.  L.  ed.  527,  4  Sup.  Ct.  566. 

Co.  V.  Patrick,  144  Fed.  632,  75  C.  C.  'Elliott  Railroads  (2d  ed.),  §  1415; 

A.  434;  Texas  Pac.  R.  Co.  v.  Nich-  Hutchinson  Carriers  (3d  ed,),  §  154. 

Olson,  61   Tex.  491,  21  Am.  &  Eng. 

154 


BILLS    OF    LADING.  155 

deliver  them  as  directed,  the  terms  upon  which  the  goods  are 
carried,  a  stipulation  that  the  goods  are  in  good  condition,  and, 
usually,  certain  qualifications  of  the  strict  liability  of  the  carrier 
as  insurer.  In  order  to  bind  both  parties,  such  bill  must  usually 
be  signed  by  the  carrier  or  his  authorized  agent,  and  accepted  by 
the  shipper.*  These  bills  are  usually  made  out  in  duplicate  or 
triplicate,  and,  in  case  of  variance,  that  issued  to  the  shipper 
controls.^ 

§  141.  Dual  capacity  of  bill  of  lading  as  receipt  and  con- 
tract.— A  bill  of  lading  is,  as  is  seen  from  the  foregoing  enu- 
meration of  its  usual  contents,  both  a  receipt  and  a  contract,  and 
serv'es  both  as  evidence  of  the  receipt  and  acceptance  of  the  goods 
by  the  carrier  and  as  evidence  of  the  terms  of  the  contract  of 
carriage.*^  Its  capacity  thus  being  dual,  the  rule  of  evidence  ap- 
plies, that,  so  far  as  a  bill  of  lading  is  a  receipt,  it  may  be  varied, 
contradicted,  or  explained  in  any  way  by  parol,'^  and  proof  of 
delivery  may  be  made  by  parol,  though  a  receipt  was  given  and  is 
still  in  existence;^  so  far  as  it  is  a  contract,  its  terms  may  not 
be  varied,  or  added  to  by  parol,^  but  it  may,  however,  in  a  proper 
case,  be  shown  by  parol  that  the  contract  as  expressed  in  the  bill 
of  lading  was  not  the  contract  of  the  parties,  and  never  had  any 
binding  force.^"  In  the  present  chapter,  we  shall  consider  the 
bill  of  lading  mainly  as  a  receipt,  and  later  discuss  it  as  a  contract 
limiting  liability. 

§  142.  Authority  to  give  bill  of  lading. — A  carrier  is  not 
bound  by  the  bill  of  lading  if  his  agent  was  not  in  some  way  au- 

*The  Brittannia,  87  Fed.  495;  Pat-  Am.   St.   116;  ?Iazard  v.  111.  Central 

rick   V.    Missouri,    K.    &    T.    R.    Co.  R.  Co.,  67  Miss.  32,  7  So.  280;  Abbe 

(Ind.  Terr.),  88  S.  W.  330.  v.   Eaton,  51   N.  Y.  410. 

■* Ontario  Bank  v.  Hanlon,  23  Hun  ^Atlantic    Coast    Line    R.    Co.    v. 

(N.  Y.)  283.  Dexter,  50  Fla.  180,  39  So.  634,   111 

"Planters'    Fertilizer    Mfg.    Co.    v.  Am.  St.  116. 

Elder,    101    Fed.    1001,    42    C.    C.    A.  "See    §§     145,     146,     infra;    Way- 

130;  The  Tongoy.  55  Fed.  329;  New  land's  Admr.  v.  Moselv.  5  Ala.  430. 

York  Cent.  R.   Co.  v.  Lockwood,   17  39  Am.   Dec.   335;    Louisville  &c.   R. 

Wall.    (U.    S.)    357,   21    L.    ed.   627;  Co.   v.   Wilson.    119  Ind.   352.  21    N. 

Pollard  V.   Vinton,    105   U.   S.   7,  26  E.  341,  4  L.  R.  A.  244n ;   Whitnack 

L.  ed.  998.  v.  Chicago  &c.  R.  Co.,  82  Nebr.  464, 

'St.  Louis  &c.   R.  Co.  V.  Citizens'  118  N.  W.  67,  19  L.  R.  A.   (N.  S.) 

Bank,  87  Ark.  26,  112  S.  W.  154,  128  lOlln,  130  Am.  St.  692;  Long  v.  New 

Am.    St.    17;    Elm    Staves    Case,    21  York  &c.  R.  Co.,  50  N.  Y.  %. 

Fed.  590;  Atlantic  Coast  Line  R.  Co.  ^"See  §§  145,  146  infra. 
V.  Dexter,  50  Fla.  180,  39  So.  634,  HI 


156  BAILMENTS. 

thorized  to  give  such  bill.  If  a  bill  is  given  for  a  greater  amount 
than  actually  received,  by  an  agent  having  the  authority  to  give 
a  bill  for  a  certain  amount,  the  carrier  may  be  estopped  from 
showing  the  true  amount,  as  against  an  innocent  transferee  of 
the  bill,"  but  an  agent  who  issues  a  bill  of  lading  when  no  goods 
were  actually  received  has  exceeded  his  authority,  since  without 
a  delivery  of  goods  there  can  be  no  contract  to  carry,  and  the 
carrier  is  not  bound  by  the  bill  so  issued,^-  even  against  an  inno- 
cent transferee  or  bona  fide  purchaser."-  The  contrary  rule,  how- 
ever, holds  in  certain  states.^* 

§  143.  Operation  of  bill  of  lading  as  receipt. — A  bill  of 
lading  is  evidence  of  the  receipt  of  goods  by  the  carrier,  but  it 
may  be  shown  that  no  goods  were  received.^^  The  recitals  in  the 
bill  as  to  the  amount  of  goods  received  may  be  contradicted  by 
parol  as  between  the  shipper  and  the  carrier,"  but  where  the 
carrier  has  issued  a  bill,  knowing  that  the  goods  may  be  trans- 
ferred by  its  transfer,  and  the  goods  are  transferred  for  a  con- 
sideration by  the  bill  to  one  who  relies  upon  the  statement  therein 
as  to  the  amount,  the  carrier  is  usually  estopped  as  against  such 
good  faith  transferee  to  show  that  such  was  not  the  true  amount, 

"  Smith  V.  Bedouin  Steam  Nav.  Co.  263,  20  Am.  St.  566 ;  Louisiana  Nat. 
(1896),  App.  Cas.  70,  65  L.  J.  P.  C.  Bank  v.  Laveille,  52  Mo.  380;  Will- 
8;  Thomas  v.  Atlantic  Coast  Line  R.''iams  v.  Wilmington  &c.  R.  Co.,  93 
Co.,  85  S.  Car.  537,  64  S.  E.  220,  67  .  N.  Car.  42,  53  Am.  Rep.  450n ;  Dean 
S.  E.  908,  34  L.  R.  A.  (N.  S.)  1177  v.  King,  22  Ohio  St.  118:  Roy  v. 
and  note,  21  Am.  &  Eng.  Ann.  Cas.     Northern  Pac.  R.  Co.,  42  Wash.  572, 

223.  85  Pac.  53,  6  L.  R.  A.   (N.  S.)   302, 
^St.  Louis,  L  M.  &  S.  R.  Co.  v.     7  Am.  &  Eng.  Ann.  Cas.  728;  cases 

Citizens'   Nat.  Bank,  87  Ark.  26,  128  cited   in   note,    7   Am.   &   Eng.   Ann. 

Ana.  St.   17,   112  S.  W.   154;  Roy  v.  Cas,  731;  Pollard  v.  Vinton,  105  U. 

Northern  Pac.  R.  Co.,  42  Wash.  572,  S.  7.  26  L.  ed.  998. 

85  Pac.  53,  6  L.  R.  A.   (N.  S.)   302,  "St.   Louis  &c.   R.   Co.  v.  Larned, 

7   Am.   &   Eng.   Ann.    Cas.   728   and  103   111.  293;   Wichita   Sav.   Bank  v. 

note.  Atchison  &c.  R.  Co.,  20  Kans.  519; 

^*  Grant  v.  Norway,  10  C.  B.  665;  Sioux  City  &  P.  R.  Co.  v.  Fremont 

Erb  V.  Great  Western  R.  Co.,  5  Can.  First  Nat.  Bank,  10  Nebr.  556,  7  N. 

Sup.  Ct.  179;  Union  R.  &  Trans.  Co.  W.   311,   35   Am.   Rep.   488;   Batavia 

V.    Yeager,    34    Ind.    1;    Fellows    v.  Bank  v.   New  York  &c.   R.   Co.,   106 

Steamer  R.  W.  Powell,  16  La.  Ann.  N.    Y.    195,    12    N.    E.   433,   60   Am. 

446;   Henderson  v.  Louisville  &c.  R.  Rep.  440;   Brooke  v.   New  York  &c. 

Co.    116  La.  1047,  41  So.  252,  114  Am.  R.   Co.,  108  Pa.   St.  529,   1  Atl.  206. 

St.   582;   Baltimore  &  O.   R.   Co.   v.  56  Am.   Rep.  235. 

Wilkens,  44  Md.  11,  22  Am.  Rep.  26;  '^  See  cases  cited  in  §  142. 

Sears   v.   Wingate,  3   Allen    (Mass.)  ^ Bates    v.    Todd,    1    M.    &    Rob. 

103-  National  Bank  of  Commerce  v.  (Eng.)    106;    Goodrich   v.    Norris.    1 

Chicago,  B.  &  N.   R.   Co..  44  Minn.  Abb.    Adm.    (U.   S.)    196,   Fed.   Cas. 

224,  46  N.  W.  342,  560,  9  L.  R.  A.  No.  5545;   Crenshawe  v.   Pearce,  37 


BILLS    OF    LADING.  157 

even  if  there  was  a  mistake/^  This  rule  does  not,  however,  apply 
if  no  goods  have  actually  been  received/**  The  rule  is  that  if  it 
is  stipulated  that  the  bill  of  lading  shall  be  conclusive  as  to  quan- 
tity, such  stipulation  is  given  effect/** 

§  144.  Recitals  in  bill  of  lading  as  to  condition  or  charac- 
ter of  goods  received. — Most  bills  of  lading  contain  a  recital 
that  the  goods  were  received  in  good  condition,  or  apparently 
good  condition,  and  it  is  presumed  without  such  a  recital  that  they 
were  in  good  condition  as  to  external  appearance.'"  But  even  if 
they  are  stated  to  be  in  good  condition,  the  carrier  may  show  that 
they  were  not  actually  so  at  the  time  of  shipment,  that  they  were 
improperly  packed,  or  that  they  had  deteriorated  from  natural 
decay  before  delivery,-^  if  a  claim  is  made  for  damage  during 
transportation.  Such  a  recital  as  to  good  condition  is  only  evi- 
dence of  apparent  good  condition,  for  the  carrier  cannot  inspect 
the  packages  in  order  to  ascertain  whether  they  are  actually  in 
good  condition,  and  can  rely  only  upon  outward  appearances. 
Clauses  are  often  inserted  in  bills  of  lading  to  the  effect  that  the 
weight,  contents  or  value  of  the  goods  are  unknown,  and  where 
such  clauses  are  present,  the  carrier  cannot  be  held  for  the  stated 
amount  and  kind  written  in  as  a  description/"  The  effect  of 
such  a  clause  seems  to  be  to  make  the  written  description  of  the 

Fed.  432,  revd.  43  Fed.  803;  The  Wis-  ^'Bond  v.   Frost,  8  La.  Ann.  297; 

consin   v.   Young,   3   Greene    (Iowa)  The  Zone,  2  Sprague's  Dec.   (U.  S.) 

268;   O'Brien  v.   Gilchrist,  34  Maine  19,  18  Law  Rep.  725,  30  Fed.  Cas.  No. 

554,  56  Am.  Dec.  676;  Meyer  v.  Peck,  18220. 

28  N.  Y.  590.  ^Elliott   R.    R.    (2d   ed.),    §    1420 

"  Thomas    v.    Atl'antic    Coast    Line  and  cases  cited ;  St.  Louis  &c.  R.  Co. 

R.  Co.,  85  S.  Car.  537,  64  S.  E.  220,  v.  Neel,  56  Ark.  279,  19  S.  W.  963; 

€1  S.   E.  908,  34  L.   R.   A.    (N.   S.)  Hastings  v.  Pepper,  11  Pick.  (Mass.) 

1177  and  note,  21  Am.  &  Eng.  Ann.  41;  Hazard  v.  Illinois  Central  R.  Co., 

Cas.  223  and  note.  67    Miss.    32,    7    So.    280;    Arend   v. 

"  See  cases  cited  in  notes   12  and  Liverpool,  N.  Y.  &  P.  S.  S.  Co.,  64 

13.  Barb.   (N.  Y.)   118,  6  Lans.   (N.  Y.) 

"Mediterranean    Steamship   Co.   v.  457;   Missouri    Pac.   R.   Co.   v.   Fen- 

Mackay   (1903),   1   K.   B.  297;   Saw-  nell,  79  Tex.  448.  15  S.  W.  693;  Nel- 

yer  v.    Cleveland    Iron    Co.,   69   Fed.  son   v.   Woodruff,    1    Black.    (U.    S.) 

211,  16  C.  C.  A.  191,  35  U.  S.  App.  156,  17  L.  ed.  97;  Clark  v.  Barnwell, 

427;  The  Tongoy,  55  Fed.  329;  Mer-  12  How.   (U.  S.)  272,  13  L.  ed.  985. 

rick  v.  Nineteen  Thousand  Five  Hun-  "^  The  Ismeale,  14  Fed.  491,  22  Fed. 

dred  and  Fourteen  Bushels  of  Wheat,  559;    Matthiessen    v.    Gusi,    29    Fed. 

3  Fed.  340;  Rhodes  v.  Newhall,   126  794;    The    Seefahrer,    133   Fed.   793; 

N.  Y.  574,  27  N.  E.  947,  22  Am.  St.  The  La  Kroma,  138  Fed.  936;  Hen- 

859;  note,  1  Am.  &  Eng.  Ann.  Cas.,  derson    v.    Iron    Ore,    38    Fed.    56; 

p.  227.  Lewis  v.  Gale,  17  La.  Ann.  302 ;  I\Iil- 


158  BAILMENTS. 

goods  solely  a  representation  of  the  shipper  to  the  carrier,  and 
the  contract  therefore,  is  that  the  carrier  has  received  certain 
goods  from  the  shipper,  weight,  contents,  and  value  unknown,  de- 
scribed in  a  certain  manner  by  the  shipper. 

§  145.  Bill  of  lading  as  a  contract. — A  bill  of  lading  deliv- 
ered by  the  carrier  and  accepted  by  the  shipper  is  presumed  to 
constitute  the  contract  of  carriage,  and  as  such  cannot  be  varied 
by  parol,^^  and  the  shipper  who  received  it  is,  in  so  far  as  it  is  a 
contract,  conclusively  presumed  to  have  read  it  and  acquiesced 
in  its  terms,  unless  fraud  or  mistake  is  shown.  If  a  bill  of  lading 
is  ambiguous,  parol  evidence  is  admissible  to  remove  the  am- 
biguity.''* It  is  held  inadmissible  to  vary  implied  obligations  as  to 
which  the  contract  does  not  speak,  but  which  are  implied  by  law, 
or  arise  from  the  nature  of  the  contract.  For  instance,  where 
there  is  more  than  one  route,  and  none  is  specified  in  the  bill,  the 
carrier  may  select  any  usual  and  reasonable  route,  and  it  cannot 
be  shown  by  parol  that  another  route  was  in  the  minds  of  the 
parties,^^  or  if  no  mention  is  made  of  the  time  of  delivery  by  the 
carrier,  it  will  be  presumed  that  a  reasonable  time  was  allowed, 
and  parol  evidence  will  not  be  allowed  to  show  a  different  under- 
standing.-® The  bill  imports  the  usual  mode  of  shipping,  if  there 
are  no  contrary  specifications,  so  where  the  bill  was  silent  in  this 

ler  V.  Hannibal  &  St.  J.  R.  Co.,  90  v.  N.  Y.  Cent.  &  H.  R.  R.  Co.,  56  N. 

N.  Y.  430,  43  Am.  Rep.  179;  St.  Louis  Y.  429;  The  Delaware,  14  Wall.  (U. 

&c.  R.  Co.  V.  Knight,  122  U.  S.  79,  7  S.)  579,  20  L.  ed.  779;  Davis  v.  Cen- 

Sup.  Ct.  1132,  30  L.  ed.  1077,  30  Am.  tral  Vermont  R.  Co..  66  Vt.  290,  29 

&  Eng.  R.  Cas.  88.   Where  goods  were  Atl.  313,  44  Am.  St.  852. 

described  in  the  bill  of  lading  as  "two  "The  Wanderer,  29  Fed.  260;  Sa- 

bundles  of  carpet,"  it  was  proper  to  vannah  &c.  R.  Co.  v.  Collins,  11  Ga. 

show  that  the  bundles  contained  other  ^Ky,  3  S.  E.  416,  4  Am.  St.  87^  The 

articles    than    carpet,    their    appear-  Delaware,   14  Wall.    (U.   S.)    579,  20 

ance  suggesting  the  fact,  and  all  the  L._^ed.  779. 

goods    shipped    being    liable    to    the  "  Snow  v.  Indiana  B.  &  W.  R.  Co., 

same    freight    rate,    and   no    reduced  109  In d.  422,  9  N.   E.  702;   Simkins 

rate  being  given.    Benson  v.  Oregon  v.    Norwich    &c.    Steamboat    Co.,    11 

Short  Line  R.  Co.,  35  Utah  241,  99  Cush.    (^lass.)    102;    White   v.    Ash- 

Pac.  1072,  136  Am.  St.  1052.  ton,  51  N.  Y.  280;  Hinckley  v.  New 

=' Elliott    R.    R.    (2d    ed.),    §    1423  York    Cent.    &c.    R.    Co.,    56    N.    Y. 

and  cases  cited;  Snow  v.  Indiana,  B.  429;   Hudson   Canal   Co.  v.   Pennsyl- 

&  W.  R.  Co.,  109  Ind.  422,  9  N.  E.  vania  Coal  Co.,  8  Wall.   (U.  S.)  276, 

702 ;  Louisville  &c.  R.  Co.  v.  Wilson,  19  L.  ed.  349. 

119  Ind.  352,  21  N.  E.  341,  4  L.  R.  A.  ^Central  R.   Co.  v.  Hasselkus,  91 

244;  St.  Louis  &c.  R.  Co.  v.  Cleary,  Ga.  382,  17  S.  E.  838,  44  Am.  St.  Zl  \ 

71  Mo.  634;  Turner  v.  St.  Louis  &c.  Gulf    C.   &   S.   F.   R.   Co.   v.    Baugh 

R.   Co.,  20  Mo.  App.  632;  Hinckley  (Tex.  Civ.  App  ),  42  S.  W.  245. 


BILLS   OF   LADING.  159 

respect,  the  carrier  was  not  allowed  to  set  up  a  previous  parol 
agreement  to  the  effect  that  goods  should  be  stowed  on  deck, 
when  the  usual  method  of  stowage  was  between  decks,^^  even 
when  the  shipper's  agent  saw  the  goods  stowed  on  deck  without 
objecting.-^ 

§  146.  Conflict  between  bill  of  lading  and  parol  contract. 
— A  subsequent  parol  agreement  may  be  entered  into  by  the 
shipper  and  the  carrier,  which  will  have  the  effect  of  abrogating, 
changing,  or  modifying  the  contract  as  set  out  in  the  bill  of  lad- 
ing.^^  It  is  generally  held  that  if  there  has  been  an  oral  agree- 
ment, and  subsequently,  before  acceptance  by  the  carrier,  the 
shipper  accepts,  with  knowledge,  a  written  bill  of  lading  varying 
the  oral  contract,  the  bill  of  lading  will  prevail,  in  accordance 
with  the  general  rule  that  a  subsequent  written  contract  merges 
previous  parol  agreements.^**  But  if  such  bill  of  lading  is  not  de- 
livered to  the  shipper  until  after  the  goods  have  been  fully  ac- 
cepted under  an  oral  agreement,  the  bill  is  not  a  part  of  the 
contract,  which  has  been  fully  determined  by  the  acceptance  of 
the  goods  under  the  oral  agreement.^^  Yet,  since  a  contract  once 

=' Barber   v.    Brace,    3    Conn.   9,    8  Co.,   117   Mich.   568.   76   N.   W.   380, 

Am.  Dec.   149;   Shackleford  v.  Wil-  44  L.  R.  A.  415;  Waldron  v.  Fargo, 

cox,  9  La.   33;   Creery  v.   Holly,   14  170  N.  Y.  130,  62  N.  E.  1077;  Guil- 

Wend.  (N.  Y.)  26;  The  Delaware,  14  laume   v.    General    Transp.    Co.,    100 

Wall.  (U.  S.)  579,  20  L.  ed.  779.  N.  Y.  491,  3  N.  E.  489;  Wheeler  v. 

'^Sproat  V.  Donnell,  26  Maine  185,  New  Brunswick  &c.   R.   Co..    115  U. 

45   Am.  Dec.   103.  S.  29,  5  Sup.  Ct.  1061,  1160,  29  L.  ed. 

=="  Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  341;   Stoner  v.   Chicago  &c.   R.   Co., 

Levy,    127   Ind.    168,   26   N.    E.   773;  109  Iowa  551,  80  N.   W.  569;  Wal- 

Louisville,    N.    A.    &    C.    R.    Co.    v.  tham  Mfg.  Co.  v.  New  York  &  Tex. 

Craycraft,   12  Ind.   App.   203,   39  N.  Steamship  Co.,  204  Mass.  25,  90  N. 

E.    523;    Cincinnati     &c.     R.     Co.    v.  E.   550.     The   same   principle  applies 

Steele,    140    Ky.    383,    131    S.   W.   22,  to  making  of  a  bill  of  lading  after 

140  Am.  St.  389 ;   Steidl  v.  Minneap-  a  charter  party  is  entered  into.   Burns 

olis  &  St.   L.  R.  Co.,  94  Minn.  233,  v.  Burns,  131  Fed.  238,  65  C.  C  A. 

102  N.  W.   701.  224;    Huron    Barge    Co.    v.    Turney, 

'» See  cases  cited  under  note  23.  St.  71  Fed.  972 ;  The  Iowa,  26  C.  C.  A. 
Louis  &c.  R.  Co.  V.  Jones,  93  Ark.  261,  80  Fed.  933,  52  U.  S.  App.  199. 
537,  125  S.  W.  1025,  137  Am.  St.  So  the  mere  receipt  by  the  consignee 
99;  Gulf  &c.  R.  Co.  v.  Batte  (Tex.  after  loss  of  a  bill  of  lading  limit- 
Civ.   App.),  94   S.   W.   345.  ing  liability,  not  issued  on  the  ship- 

^  Snow  V.  Indiana,  Bloomington  &  ment   of   the   goods,    does    not    estop 

Western  R.   Co.,   109  Ind.  422,  9  N.  him  from  asserting  the  common-law 

E.    702;    Wilde    v.    Merchants'    Dis-  liability  of  the  carrier.     McGregor  v. 

patch   Transp.   Co.,  47   Iowa  247,  29  Oregon  R.  &  Nav.  Co.,  50  Ore.  527, 

Am.   Rep.   479;   Hendrick  v.   Boston  93   Pac.   465,    14  L.    R.   A.    (N.    S.) 

&  A.  R.  Co.,  170  Mass.  44,  48  N.  E.  668. 
835;   Rudell  v.   Ogdensburg   Transit 


l60  BAILMENTS. 

entered  into  may  be  superseded  by  a  new  one,  if,  after  an  oral 
agreement  is  entered  into,  a  bill  of  lading  differing  in  its  terms 
is  delivered  to  the  shipper  and  his  attention  called  to  the  differ- 
ences, or  he  has  knowledge,  and  expressly  or  impliedly  assents, 
at  least  if  there  be  a  consideration  therefor,  the  bill  will  control. ^^ 
This  is  not  true  if  the  assent  has  been  procured  by  unfair  means, 
as  misrepresentation  or  duress.^^ 

§  147.  Mutual  assent. — If  by  custom  between  the  parties 
the  carrier  issues  receipts  after  the  goods  have  been  shipped,  this 
receipt  may  control  as  to  the  rights  of  the  parties.^*  Likewise  if  a 
temporary  receipt  is  issued,  with  the  understanding  by  both  par- 
ties that  a  bill  of  lading  will  later  be  issued,  the  bill  is  considered 
to  contain  the  contract.^^  But  from  the  mere  fact  that  the  ship- 
per accepts  a  receipt  providing  that  the  goods  are  received  accord- 
ing to  the  terms  of  a  bill  of  lading  to  be  issued  later,  unless  the 
carrier  can  show  clearly  that  he  fairly  assented  to  such,  the 
shipper  is  not  bound  by  the  bill,^^  though  it  has  been  held  that 
if  it  is  stated  in  the  receipt  that  the  goods  are  received  subject 
to  the  terms  of  the  carrier's  bill  of  lading,  for  which  the  receipt 
is  later  to  be  exchanged,  the  shipper  has  sufficient  notice  to  be 
bound  by  the  conditions  of  the  bill.^^  Where  the  letters  passing 
between  the  shipper  and  the  carrier  set  out  merely  the  rates  of 
carriage,  and  the  time  within  w^hich  claims  are  settled,  it  is  as- 
sumed that  the  parties  had  in  mind  the  usage  and  custom  of  issu- 
ing bills  of  lading,  and  such  bills,  when  issued,  it  is  held,  consti- 
tute the  contract  or  a  part  of  the  contract.^^  If  the  shipper  ac- 
cepts a  receipt  stating  that  the  conditions  of  transportation  are 
to  be  found  on  the  back,  he  usually  accepts  and  is  bound  by  such 
conditions,  and  if  the  condition  is  that  unless  the  word  "order" 

*'The  Arctic  Bird,   109  Fed.    167;  &c.  R.  Co.,  180  Mass,  252,  62  N.  E. 

Northern   P.  Railway  Co.  v.  Ameri-  590. 

can  &c.  Co.,  195  U.  S.  439,  49  L.  ed.  '"  Merchants'   Despatch   &c.    Co.   v. 

269.  Furthmann,  149  111.  66,  36  N.  E.  624, 

**  Wabash  R.  Co.  v.  Lannum,  71  111.  41  Am.  St.  265 ;  Cleveland,  C.  C.  & 

App.   84;    Southern    Pac.    R.    Co.   v.  St.  L.  R.  Co.  v.  Potts,  33  Ind.  App. 

Anderson,  26  Tex.  Civ.  App.  518,  63  564,  71  N.  E.  685. 

S.    W.    1023.  "Dunbar   v.    Charleston  &   W.    C. 

**Shelton    v.    Merchants'    Dispatch  R.  Co.,  62  S.  Car.  414,  40  S.  E.  884. 

&c.  Co.,  59  N.  Y.  258.  ""  Merchants'     &c.     Transportation 

"Washburn-Crosby  Co.  v.   Boston  Co.  v.  Eichberg,  109  Md.  211,  71  Atl. 

993,  130  Am.  St.  524. 


BILLS    OF    LADING.  l6l 

appears  after  the  name  of  the  consignee,  the  property  may  be  de- 
livered without  production  or  surrender  of  the  bill  of  lading,  this 
excuses  delivery  without  such  production  or  surrender."'*  Where 
an  initial  carrier  receives  goods  under  a  shipping  order  and 
issues  to  the  consignor  a  shipping  receipt,  and  the  consignor  for- 
wards the  shipping  receipt  to  the  second  carrier,  which  prepares 
a  bill  of  lading  differing  from  the  receipt  as  to  the  route  of 
transportation,  and  said  bill  of  lading  is  accepted  by  the  consignor 
without  examining  it,  the  bill  of  lading  has  been  held  to  control, 
since  it  was  the  only  contract  between  the  consignor  and  the  sec- 
ond carrier.***  An  oral  agreement  to  furnish  cars  at  a  certain  time 
is  merged  into  a  written  agreement  subsequently  entered  into 
which  makes  no  mention  of  the  time  when  the  goods 
are  to  be  transported.*^  But  if  the  oral  agreement  has  been 
broken  before  the  goods  are  shipped,  and  the  shipper  then  takes 
a  bill  of  lading  for  the  shipment,  he  has  not  lost  his  right  to  re- 
cover in  damages,  unless  he  has  expressly  relinquished  it  for  a 
consideration.*" 

§  148.  Transfer  of  title  to  goods  by  transfer  of  bill  of 
lading. — The  bill  of  lading  is  regarded  as  the  representative 
of  the  goods,*^  and  title  to  the  goods  while  they  are  in  the  pos- 
session of  the  carrier  may  be  transferred  by  transferring  the  bill 
of  lading.  A  delivery  of  the  bill  indorsed  with  the  intention  of 
passing  title  to  the  goods  operates  as  a  constructive  delivery  of 
them.**    Transfer  without  indorsement  gives  to  the  transferee  an 

'•Singer    v.     Merchants'   Despatch  Gulf   C.   &   S.   F.   R.   Co.  v.   House, 

Co.,  191  Mass.  449,  17  N.  E.  882,  114  40  Tex.  Civ.  App.  105,  88  S.  W.  1110; 

Am.  St.  635.  Gulf   C.  &  S.  F.   R.   Co.   v.   Combes 

*»Waltham  Mfg.  Co.  v.  New  York  (Tex.  Civ.  App.),  80  S.  W.  1045. 

&c.  Steamship  Co.,  204  Mass.  253,  90  «  Friedlander  v.  Texas  &  P.  R.  Co., 

N.  E.  550,  17  Am.  &  Eng.  Ann.  Cas.  130  U.  S.  416,  Z2  L.  ed.  991,  9  Sup. 

837.  Ct.  570. 

^'Helm   V.    Missouri    Pac.    R.    Co.,  "Benj.  Sales  (7th  ed),  §  813;  Ar- 

98  Mo.  App.  419,  n  S.  W.   148.  kansas  S.  R.  Co.  v.  German    Nat.  Bank, 

"  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  11  Ark.  482,  92  S.  W.  522,  113  Am.  St. 

V.  Racer.  10  Ind.  App.  503,  Z1  N.  E.  160.    Generally,  as  to  the  rights  and 

280,  38  N.  E.  186;  Clark  v.  Ulster  &c.  liabilities  of  assignees  of  bills  of  lad- 

R.  Co.,  189  N.  Y.  93,  81   N.  E.  766,  ing  and  for  a  review  and  collation  of 

13  L.  R.  A.    (N.   S.)    164n,  121  Am.  the  cases,  see  monographic  note,  105 

St.  848;   McAbsher  v.  Richmond  &c.  Am.  St.  332-375.    Dodge  v.  Mever,  61 

R.   Co.,    12   S.    E.   892.    108   N.   Car.  Cal.  405;  Raleigh  &c.  R.  Co.  v.'Lowc, 

344;   Hamilton  v.   Western  N.   C.  R.  101   Ga.  320.  28  S.  E.  867;  Michiffnn 

Co.,  96  N.   Car.   398.   3   S.   E.    164;  Cent.  R.  Co.  v.  Phillips,  60  111.  190; 
Bailments — 1 1 


1 62 


BAILMENTS. 


equitable  title  to  the  goods. *^  Bills  of  lading  are  not  negotiable 
in  the  sense  of  commercial  paper,  only  quasi-negotiable.*'^  They 
are  assignable,  and  tho.  assignee  gets  the  same  title  to  the  goods 
that  the  assignor  had,*^  while  in  the  case  of  negotiable  commer- 
cial paper,  the  assignee  for  value  in  good  faith  may  get  a  better 
title  to  the  money  which  the  paper  represents  than  his  assignor 
had.  Since  the  bill  of  lading  is  in  general  transferable  as  stand- 
ing in  the  place  of  the  goods,  the  owner  may  by  his  conduct  in 
transferring  the  bill  estop  himself  from  later  claiming  any  title 
to  the  goods,*®  so  that  some  of  the  elements  of  negotiability  are 
represented  in  a  bill  of  lading.  The  holder  of  a  fraudulent  or 
fictitious  bill  of  lading,  or  one  the  delivery  and  indorsement  of 
which  have  been  procured  by  fraud  or  mistake,  has  no  rights  as 
against  the  owner,  even  though  the  holder  be  a  bona  fide  pur- 
chaser.*'* As  we  have  seen,  the  general  rule  is  that  a  carrier  is 
not  estopped  even  against  an  innocent  bona  fide  transferee  of  a 
bill  of  lading  from  showing  that  no-goods  were  in  fact  received 


Ayres  v.  Dorsey  Produce  Co.,  101 
Iowa  141,  70  N.  W.  Ill,  63 
Am.  St.  376;  Louisville  &  N. 
R.  Co.  V.  Hartwell,  99  Ky.  436, 
18  Ky.  L.  745,  36  S.  W.  183,  38 
S.  W.  1041;  Robinson  v.  Stuart,  68 
Maine  61 ;  Stone  v.  Swift,  4  Pick. 
(Alass.)  389,  16  Am.  Dec.  344;  Na- 
tional Bank  of  Bristol  v.  Baltimore 
&  O.  R.  Co.,  99  Md.  661,  59  Atl.  134, 
105  Am.  St.  321n ;  Ratzer  v.  Burling- 
ton &c.  R.  Co.,  64  Minn.  245,  66  N. 
W.  988,  58  Am.  St.  530;  Midland  Nat. 
Bank  v.  Missouri,  K.  &  T.  R.  Co., 
62  Mo.  App.  531,  affd.  132  Mo.  492, 
33  S.  W.  521,  53  Am.  Rep. 
505;  Union  Pac.  R.  Co.  v.  John- 
ston, 45  Nebr.  57,  63  N.  W.  144, 
50  Am.  St.  540;  Hazard  v.  Fiske, 
83  N.  Y.  287;  Wadham  v.  Balfour, 
32  Ore.  313,  51  Pac.  642;  Campbell  v. 
Alford,  57  Tex.  159;  The  Carlos  F. 
Roses,  177  U.  S.  655,  44  L.  ed.  929, 
20  Sup.  Ct.  803;  Joslyn  v.  Grand 
Trunk  R.  Co.,  51  Vt.  92. 

^"Turner  v.  Israel,  64  Ark.  244,  41 
S.  W.  806;  Merchants'  Bank  v.  Union 
&c.  Transp.  Co.,  69  N.  Y.  373. 

«ElHott  R.  R.  (2d  ed),  §  1428  and 
cases  cited;  Haas  v.  Citicens*  Bank, 
144  Ala.  562,  39  So.  129,  1  L.  R.  A. 
(N.   S.)   242,   113  Am.   St.  61;   Na- 


tional Bank  of  Bristol  v.  Baltimore 
&  O.  R.  Co.,  99  Md.  661.  59  Atl.  134, 
105  Am  St.  321;  Stollenwerck  v. 
Thacher,  115  Mass.  224;  Friedlander 
V.  Texas  &  P.  R.  Co.,  130  V.  S.  416, 
32  L.  ed.  991,  9  Sup.  Ct.  570. 

"  Haas  V.  Citizens'  Bank,  144  Ala. 
562,  39  So.  129,  1  L.  R.  A.  (N.  S.) 
242,  113  Am.  St.  61;  Haas  v.  Kan- 
sas City  &c.  R.  Co.,  81  Ga.  792,  7  S. 
E.  629;  Anchor  ]\Iill  Co.  v.  Burling- 
ton &c.  R.  Co.,  102  Iowa  262,  71  N. 
W.  255 ;  Alabama  Nat.  Bank  v.  Mo- 
bile &c.  R.  Co.,  42  Mo.  App.  284; 
Shaw  V.  Merchants'  Nat.  Bank, 
101  U.  S.  557,  25  L.  ed,  892. 

*'Gurney  v.  Behrend,  3  El.  &  Bl. 
622,  633-34,  23  L.  J.  Q.  B.  265 ;  Shaw 
V.  Railroad  Co.,  101  U.  S.  557,  25 
L.  ed.  892;  Pollard  v.  Vinton,  105  U. 
S.  7,  26  L.  ed.  998. 

""Gurney  v.  Behrend.  3  El.  &  Bl. 
622-34;  Henderson  v.  Louisville  &c. 
R.  Co.,  116  La.  1047,  41  So.  252,  114 
Am.  St.  582;  Brower  v.  Peabody,  13 
N.  Y.  121,  2  Abb.  Pr.  211,  11  How. 
Pr.  492;  Dows  v.  Perrin,  16  N.  Y. 
325;  Decan  v.  Shipper,  35  Pa.  St. 
239,  78  Am.  Dec.  334;  Shaw  v.  Rail- 
road Co.,  101  U.  S.  557,  25  L.  ed. 
892. 


BILLS    OF    LADING.  163 

or  shipped,  though  the  agent  issued  a  bill  of  lading.""  In  case 
of  duplicate  bills  of  lading,  the  transferee  of  one  of  the  bills 
takes  the  goods,  even  as  against  the  original  owner  who  holds 
the  original  bill,  if  that  owner  has  transferred  the  duplicate  with 
the  intention  of  passing  title."^  Statutes  making  bills  of  lading 
negotiable  are  not  held  to  give  them  the  characteristics  of  com- 
mercial paper,  but  only  to  prescribe  the  manner  by  which  they 
may  be  transferred,  without  undertaking  to  change  the  effect 
of  such  transfer,^-  unless  it  is  expressly  provided  that  they  shall 
be  negotiable  in  the  same  sense  as  bills  of  exchange  and  promis- 
sory notes,  and  the  bona  fide  purchasers  for  value  without  notice 
of  such  bills  are  expressly  given  the  title  to  property  represented 
by  them  unaffected  by  the  rights  of  the  original  owner."^ 

§  149.  Bill  of  lading  as  evidence  of  title. — The  consignee 
named  in  a  bill  of  lading  is  presumptively  the  owner  of  the 
goods  and  the  carrier  must  so  consider  him  unless  he  has  notice 
to  the  contrary,  and  delivery  to  him  without  such  notice  will 
release  the  carrier  from  liability.^*  Taking  a  bill  of  lading  in 
the  name  of  the  consignee  vests  apparent  title  in  him  f^  likewise 
the  indorsement  of  the  bill  of  lading  vests  apparent  title  in  the 
transferee.^®  If  a  person  is  named  in  the  bill  of  lading  as  con- 
signee, transfer  of  the  bill  by  delivery  only,  without  indorsement, 

^  See   cases    cited   under   note    13,  Moline  Plow  Co.,   13  Ind.  App.  225, 

this  chapter.     See  note  105  Am.  St.  41   N.  E.  480;   Sweet  v.  Barney,  23 

347  et  seq.  N.  Y.  335 ;  O'Dougherty  v.  Boston  & 

■^Glyn  Mills  Currie  Co.  v.  East  &  W.  R.  Co.   (N.  Y.),  1  Thomp.  &  C. 

West    India   Dock    Co.,  7   App.    Cas.  477;  Lawrence  v.  Minturn,   17  How. 

591 ;  First  Nat.  Bank  v.  Ege,  109  N.  (U.  S.)    100,  15  L.  ed.  58. 

Y.  120,  16  N.  E.  317,  4  Am.  St.  431;  "^'Laughlin     v.     Ganahl,     11     Rob. 

Missouri     Pac.    R.    Co.    v.    Heiden-  (La.)    140;  Forbes  v.  Boston  &c.  R. 

heimer,  82  Tex.   195,   17  S.  W.  608,  Co.,   133  Mass.  154;  Bank  of  Litch- 

27  Am.  St.  861.  field  v.  Elliott,  83  Minn.  469,  86  N. 

•"First  Nat.  Bank  v.  Mt.  Pleasant  W.    454;    Fry    v.    United    States,    3 

Milling  Co.,  103  Iowa  518.  72  N.  W.  Wall.    (U.    S.)    451.    18   L.    ed.    197. 

689;    Shaw   v.    Railroad   Co.,    101    U.  And  it  is  held  that  the  owner  shipping 

S.  557,  25  L.  ed.  892,  construing  Mis-  cotton  who  accepts  a  bill  of  lading 

souri  and  Pennsylvania  statutes.  designating   the    consignees    as    ship- 

"Tiedeman   v.   Knox,  53   Md.  612.  pers    and    owners   is   not    entitled   to 

"Hutchinson   Carriers    (3d  ed.),   §  assert  ownership.    St.  Louis  &  S.  W. 

177;  Elliott  R.  R.    (2d  ed.),  §  1426;  R.  Co.  v.  Gilbreath  (Tex.  Civ.  App.), 

Nebraska   Meal    Mills   v.    St.    Louis,  144  S.  W.  1051. 

S.  W.  R.  Co.,  64  Ark.  169,  41  S.  W.  "People   v.    Midkiff,   71    111.    App. 

810,  32  L.  R.  A.  358,  62  Am.  St.  183 ;  141 ;    Peters    v.    Ballistier,    3    Pick. 

Lovell    V.    Neuman,    192    Fed.    753;  (Mass.)  495. 
Cleveland,  C.  C.  &  St.  L.  R.  Co.  v. 


164  BAILMENTS. 

will  pass  apparent  title,  even  if  the  bill  provides  for  delivery  to 
a  certain  person,  or  his  order.^^  The  consignor  who  wishes  to 
retain  the  ownership  or  control  of  the  goods  must  give  notice  to 
the  carrier  in  order  to  do  so.^^  And  if  the  goods  are  to  be  de- 
livered to  the  order  of  the  consignor  on  account  of  the  consignee, 
the  carrier  should  not  deliver  with  the  order  of  the  consignor, 
since  this  shows  that  the  shipper  retains  ultimate  power  of  dispo- 
sition, and  the  carrier  should  require  the  production  of  the  bill 
of  lading  indorsed.^^  As  the  carrier  is  liable  for  delivery  to  the 
wrong  person,  he  has  a  right  to  demand  production  of  the  bill  of 
lading  properly  indorsed,  and  may  refuse  delivery  because  of 
failure  to  present  a  proper  bill  of  lading.^"  However,  the  car- 
rier's duty  is  discharged  when  he  delivers  the  goods  to  the  person 
lawfully  entitled  to  them,  without  presentation  of  the  bill  of  lad- 
ing,®^ and  the  demanding  of  the  bill  of  lading  is  merely  precau- 
tionary on  the  part  of  the  carrier.®^  The  general  rule  is  that 
when  a  carrier  has  made  a  delivery  to  the  person  entitled  to  the 
goods  without  requiring  the  production  of  the  bill  of  lading,  sub- 
sequent transfer  of  the  bill  will  give  to  the  transferee  neither 
title  to  the  goods,  nor  a  right  of  action  against  the  carrier  for 
delivery  without  surrender  of  the  bill.®^  If  it  is  expressly  stipu- 
lated that  the  goods  shall  not  be  delivered  except  upon  surrender 
of  the  bill,  a  carrier  who  delivers  without  surrender  is  liable  to 
any  innocent  person  who  is  injured  by  such  action.^*        In  some 

"Glidden    v.    Lucas,    7    Cal.    26;  §  178;  Elliott  R.  R.   (2d  ed.),  §  1426 

Munroe    v.    Philadelphia    Warehouse  and  note  11. 

Co.,  75  Fed.  545,  79  Fed.  999;  Allen  ^Anchor    Mill    Co.    v.    Burlington 

V.  Williams,  12  Pick.   (Mass.)  297.  &c.  R.  Co.,  102  Iowa  262,  71  N.  W. 

=>"  Nebraska  ^leal  Mills  v.  St.  Louis  255 ;  Gates  v.  Chicago,  B.  &  Q.  R.  Co., 

S.  W.  R.  Co.,  64  Ark.  169,  41  S.  W.  42  Nebr.  379,  60  N.  W.  583. 

810,  32  L.  R.  A.  858,  62  Am.  St.  183.  "^^  Chicago  Packing  &  Provision  Co. 

'»Benj.  Sales,  ch.  6.  bk.  2;  Elliott  v.  Savannah  &c.  R.  Co.,  103  Ga.  140, 
R.  R.  (2d  ed.),  §  1426  and  cases  29  S.  E.  698,  40  L.  R.  A.  367.  10  Am. 
cited  in  note  11;  Arkansas  Southern  &  Eng.  R.  Cas.  (N.  S.)  391. 
R  Co.  V.  German  Nat.  Bank,  11  "Anchor  Mill  Co.  v.  Burlington 
Ark.  482,  92  S.  W.  522,  113  Am.  St.  &c.  R.  Co.,  102  Iowa  262,  71  N.  W. 
160;  Furman  v.  Union  Pac.  R.  Co.,  255;  Albany  Nat.  Bank  v.  Lack- 
106  N.  Y.  579,  13  N.  E.  587;  Penn-  awanna  Transp.  Co.,  59  App.  Div. 
sylvania  R.  Co.  v.  Stern,  119  Pa.  St.  (N.  Y.)  270,  69  N.  Y.  S.  396,  affd. 
24.  12  Atl.  756.  4  Am.  St.  626;  North  172  N.  Y.  596,  64  N.  E.  1123. 
Pennsylvania  R.  Co.  v.  Commercial  ®*  Merchants'  &c.  Bank  v.  Steam- 
Nat.  Bank.  123  U.  S.  727,  31  L.  ed.  boat  Co.,  102  Md.  573,  €h  Atl.  108; 
287,  8  Sup.  Ct.  266.  Chesapeake   Steamship    Co.    v.    Mer- 

"•  Hutchinson  on  Carriers  (3d  ed.),  chants'  Bank,  102  Md.  589,  dl  Atl. 


BILLS    OF    LADING.  1 65 

States,  It  is  the  rule  that  where  a  bill  without  such  provision  is 
transferred,  and  the  transferee  has  taken  it  in  regular  course,  and 
the  goods  have  been  delivered  to  the  consignee  without  notice  to 
the  transferee,  and  without  the  carrier  demanding  production 
of  the  bill  of  lading,  the  carrier  is  liable  to  the  innocent  trans- 
feree.^' 

§  150.  Bill  of  lading  with  draft  attached. — Bills  of  lading 
frequently  have  drafts  attached  by  the  shipper,  and  there  is  often 
a  direction  to  notify  the  one  on  whom  the  draft  is  drawn.  Ordi- 
narily, such  person,  though  named  as  consignee,  is  not  entitled 
to  delivery  of  the  property  until  he  pays  the  draft,  and  the  car- 
rier will  be  liable  for  delivery  without  production  of  the  bill  of 
lading,®^  while  a  third  party,  usually  a  bank,  who  purchases  the 
draft,  has  a  right  to  the  goods  as  security  until  the  consignee  ac- 
cepts or  pays,  and  has  a  right  of  action  against  the  carrier  for 
delivery  without  production  of  the  bill.^^  A  consignee  who  has 
advanced  money,  or  the  purchaser  of  a  draft  as  above,  usually 
has  a  better  title  to  the  goods  than  a  person  who  claims  under  a 
subsequent  agreement  with  an  owner  who  has  retained  something 
of  the  jus  disponendi.®^     So  where  there  are  duplicate  bills  in 

113;  Midland  Nat.  Bank  v.  Missouri  774,  58  Atl.  311,  66  L.  R.  A.  595,  103 

Pac.  R.  Co.,  132  Mo.  492,  33  S.  W.  Am.  St.  825. 

521,   53   Am.    St.   505.  '"Elliott  R.  R.   (2d  ed.),  §   1429a; 

*^St.  Louis,   I.   M.  &  S.  R.   Co.  V.  American    Nat.   Bank  v.    Henderson, 

Citizens'    Bank    of    Little    Rock,    87  123  Ala.  612,  26  So.  498,  82  Am.  St. 

Ark.  26,  112  S.  W.  154,  128  Am.  St.  147;   Dodge  v.   Meyer,  61   Cal.   405; 

17;  Ratzer  v.  Burlington  R.  Co.,  64  Newhall  v.   Central   Pac.   R.   Co.,  51 

Minn.  245.  66  N.  W.  988,  58  Am.  St.  Cal.  345,  21   Am.   Rep.   713;   Denver 

530;  Midland  Nat.  Bank  v.  Missouri  &c.    Bank  v.    Schmidt,   6  Colo.    App. 

Pac.  R.  Co.,  132  Mo.  492,  33  S.  W.  216,    40    Pac.    479;    Merchants'    Ex- 

521,  53  Am.   St.  505;  Union  Pac.  R.  change    Bank    v.    McGraw.    76    Fed. 

Co.  V.  Johnston,  45   Nebr.  57,  63  N.  930,  22  C.  C.  A.  622,  48  U.  S.  App. 

W.  144,  50  Am.  St.  540.  55;    Kansas    City    &c.    Bank    v.    Mt. 

"'EHiott  R.  R.    (2d  ed.),   §§  1429a,  Pleasant  Milling  Co.,  103  Iowa  518,  72 

1523,   1530  and  cases  cited;   Walters  N.   W.   689;    Halsey   v.   Warden,   25 

V.  Western  &c.  R.  Co.,  63  Fed.  391,  Kans.     128;     First     Nat.     Bank     v. 

affd.  66  Fed.  862,   14  C.   C.  A.  267;  Crocker,  111  Mass.  163;  Midland  Nat. 

Libby    V.    Ingalls,    124    Mass.    503;  Bank  v.  Missouri  &c.  R.  Co.,  62  Mo. 

North    Pennsylvania   R.    Co.    v.    Nat.  App.   531,    affd.    132   Mo.   492,    33    S. 

Commercial  Bank,  123  U.  S.  727.  31  W.   521,   52   Am.    St.   505;    Dows   v. 

L.  ed.  287.  8  Sup.  Ct.  266.     See  also,  Greene,  24   N.   Y.  638;   Chandler   v. 

St.  Louis  &c.  R.  Co.  V.  Allen  (Okla.),  Belden.  18  Johns.  (N.  Y.)  157,  9  Am. 

120  Pac.   1090,  39  L.  R.  A.   (N.  S.)  Dec.  193;  Commercial  Bank  v.  Pfeif- 

309  and  note.  fer,  34  Hun   (N.  Y.)  624,  108  N.  Y. 

"National  Newark  Banking  Co.  v.  242.    15    N.    E.   372;    Schumacher   v. 

Delaware  &c.   R.   Co.,   70   N.   J.   L.  Eby,  24  Pa.  St.  521 ;  Tilden  v.  Minor, 

45  Vt.  196. 


1 66  BAILMENTS. 

the  name  of  the  consignor,  and  one  is  sent  with  the  draft,  and  in- 
dorsed, and  the  other,  not  indorsed,  is  sent  to  the  person  who  is  to 
pay  for  the  goods,  the  carrier  is  not  justified  in  dehvering  the 
goods  upon  presentation  of  the  unindorsed  dupHcate.^^  Nor  does 
a  direction  to  notify  a  certain  person  dispense  with  the  produc- 
tion of  the  bill  of  lading,  for  the  use  of  such  language  shows  that 
the  one  designated  was  not  regarded  as  consignee/"  When  the 
shipper  draws  a  draft  on  the  purchaser  for  the  purchase-price, 
and  gets  a  bill  of  lading,  indorses  the  draft,  and  assigns  the  bill 
of  lading  to  a  third  person  for  value,  the  third  person  has  title 
to  goods  to  the  amount  advanced,  and  the  consignee  must  pay 
this  amount  in  order  to  get  the  goods,  and  cannot  hold  the  in- 
dorsee liable  on  the  contract  of  sale  for  a  shortage  in  the  ship- 
ment, or  its  inferior  quality."  The  carrier's  duty  in  deHvery  as 
affected  by  the  bill  of  lading  will  be  further  discussed  under  the 
head  of  delivery. 

•^^  Hutchinson  Carriers   (3d  ed.).  §  Commercial    Nat.    Bank,    123    U.    S. 

188;   Elliott  R.  R.   (2d  ed.),  §   1430;  W,  31  L.  ed.  287,  8  Sup.  Ct.  266. 
Weyland     v.     Atchison,     T.     &     S.        "  Cosmos  Cotton  Co.  v.  First  Nat. 

F.   R.   Co.,   75   Iowa   573,   39  N.  W.  Bank,    171   Ala.   392,   54   So.   621,   32 

899,  1  L.  R.  A.  650,  9  Am.  St.  504n.  L.  R.  A.  (N.  S.)   1173;  Central  Mer- 

" Elliott   R.   R.    (2d   ed.),   §    1427;  cantile   Co.  v.   Okla.   State  Bank.  83 

Libby    v.    Ingalls,    124    Mass.    503;  Kans.  504.  112  Pac.  114,  ZZ  L.  R.  A. 

Union    Stockyards    v.    Westcott,    47  (N.  S.)  954;  Mason  v.  Nelson  Cot- 

Nebr.  300,  66  N.  W.  419,  Furman  v.  ton   Co.,   148  N.   Car.  492,  62   S.   E. 

Union  Pac.  R.  Co.,  106  N.  Y.  579,  13  625,   18  L.  R.  A.    (N.   S.)    1221,    128 

N.    E.    587;    National    Bank   v.    At-  Am.    St.    635,    overruling    Fmch    v. 

lantic  &  C.  A.  L.  R.  Co.,  25  S.  Car.  Gregg,  126  N.  Car.  176,  35  S.  E.  251, 

216;   North  Pennsylvania  R.  Co.  v.  49  L.  R.  A.  679. 


CHAPTER  XL 


DUTIES  AND  LIABILITIES  OF  CARRIER. 


i  151.  Duty  to  carry  for  all.  165. 

152.  In  general  of  duties  implied 

in  carrier's   contract.  166. 

153.  Duty  to  furnish  sufficient  ac-         167. 

commodations. 

154.  Duty  to  furnish  suitable  ac-         168. 

commodations. 

155.  Duty  to  furnish  cars  suitable         169. 

to     particular     classes     of 
freight. 

156.  Duty  to  show  no  preference.         170. 

157.  Duty  as   to   manner   of   car-         171. 

riage. 

158.  Duty  to  obey  shipper's  direc-         172. 

tions. 

159.  Carrier   must    choose    safest         173. 

route     where     more     than 

one.  174. 

160.  Special  duties  arising  under 

special  contract — Effect  of         175. 
deviation  from  contract. 

161.  Construction  of  clauses  per-         176. 

mitting  delay  or  deviation.         177. 

162.  Contracts     to     carry    within 

certain  time.  178. 

163.  Care   of   goods   in   emergen-        179. 

cies. 

164.  Carrier's  liability  for  loss. 


Duration  of  extraordinary 
liability. 

Extent  of  carrier's   liability. 

What  is  considered  act  of 
God. 

Carrier's  exposure  to  dan- 
ger— Deviation  from  route. 

Where  accident  would  not 
have  happened  save  for 
delay. 

Burden  of  proof. 

What  may  be  act  of  public 
enemy. 

What  is  meant  by  loss 
caused  by  public  authority. 

Loss  caused  by  act  of  ship- 
per. 

Loss  caused  by  inherent  na- 
ture of  the  goods. 

Statutory  exceptions  to  car- 
rier's liability. 

Liability   for   delay. 

Special  circumstances  may 
increase  duty  not  to  delay. 

Excuses  for  delay. 

Duty  to  delay  under  some 
circumstances. 


§  151.  Duty  to  carry  for  all. — It  has  been  seen  that  the 
carrier  is  under  a  duty  to  carry  for  all  within  the  scope  of  his 
vocation,  under  reasonable  regulations,  but  that  he  may  fix  the 
time  and  place  for  receiving,  and  may  usually  refuse  to  carry 
if  he  has  no  facilities,  and  for  certain  other  reasons. 

§  152.  In  general  of  duties  implied  in  the  carrier's  con- 
tract.— The  carrier  is  liable  as  an  insurer  of  the  goods  carried, 
and  in  addition  must  use  reasonable  care  to  protect  them  from 
damage,  even  if  his  liability  be  limited  by  contract.  Ordinarily, 
he  may  choose  the  route  for  transportation,  unless  it  is  specified 
in  the  contract.     He  is  bound  to  furnish  suitable  and  sufficient 

167 


1 68  BAILMENTS. 

accommodations,  and  must  furnish  cars  suitable  for  the  shipment 
of  a  particular  commodity  which  he  carries.  For  animals  and 
certain  perishable  freight,  he  is  under  a  duty  as  to  care  com- 
mensurate with  the  needs  of  the  freight  transported.  He  must 
transport  goods  within  a  reasonable  time,  without  unnecessary 
delay.  In  case  of  disaster  or  delay,  he  must  use  reasonable  care 
to  protect  the  property  of  the  shipper  from  loss.  As  was  said  in 
a  leading  case,  "A  carrier's  duty  is  not  limited  to  the  transporta- 
tion of  goods  delivered  for  carriage.  He  must  exercise  such 
diligence  as  is  required  by  law  to  protect  the  goods  from  destruc- 
tion and  injury  resulting  from  conditions  which,  in  the  exercise 
of  due  care,  may  be  averted  or  counteracted.  He  must  guard  the 
goods  from  destruction  or  injury  by  the  elements;  from  the 
effects  of  delays;  indeed,  from  every  source  of  injury  which  he 
may  avert,  and  which,  in  the  exercise  of  care  and  ordinary  in- 
telligence, may  be  known  or  anticipated.  Unknown  causes,  or 
those  which  are  inherent  in  the  nature  of  the  goods,  and  cannot 
be,  in  the  exercise  of  diligence,  averted,  will  not  render  the  car- 
rier liable.  The  nature  of  the  goods  must  be  considered  in  de- 
termining the  carrier's  duty.  Some  metals  may  be  transported 
in  open  cars.  Many  articles  of  commerce,  when  transported, 
must  be  protected  from  rain,  sunshine,  and  heat,  and  must  have 
cars  fitted  for  their  safe  transportation.  Live  animals  must  have 
food  and  water  when  the  distance  of  transportation  demands  it. 
Fruit,  and  some  other  perishable  articles,  must  be  carried  with 
expedition  and  protection  from  frost.  So  the  carrier  must  at- 
tend to  the  character  of  the  goods  he  transports.  He  is  informed 
thereof  by  inspection  of  the  freight-bills,  or  by  other  papers  ac- 
companying the  shipment."^  These  duties  will  be  discussed  more 
particularly  in  succeeding  sections. 

§  153.  Duty  to  furnish  sufficient  accommodations. — The 
carrier  must  provide  facilities  sufficient  to  transport  the  amount 
of  freight  which  may  be  expected  ordinarily  to  be  offered  for 
carriage  over  his  route."    He  impHedly  agrees  to  furnish  facili- 

*  Beard  v.  Illinois  Cent.  R.  Co.,  79  'Hutchinson  Carriers  (3d  ed.).  § 
Iowa  518,  44  N.  W.  800,  7  L.  R.  A.  495;  Elliott  R.  R.  (2d  ed.),  §  1470. 
280,  18  Am.  St.  381.  See  cases  cited  under  note  59,   §  139. 


LIABILITIES    OF    CARRIERS.  1 69 

ties  on  a  particular  day  when  request  has  been  made  of  a  duly 
authorized  agent  a  sufficient  time  in  advance ;  if  he  cannot  fulfil 
this  agreement,  it  is  his  duty  to  notify  the  shipper  within  a  rea- 
sonable time,  and  if  in  the  absence  of  notice  the  shipper  relies 
upon  the  vehicles  for  transportation  as  being  at  the  specified  place 
at  the  specified  time,  the  carrier  is  liable  if  damage  is  occasioned.^ 
The  agreement  of  an  authorized  agent  of  a  railroad  company  to 
furnish  a  car  to  a  shipper  is  a  contract  valid  and  binding  on  both 
parties,  supported  by  consideration  and  mutual,  not  unilateral.* 
The  local  agent  of  a  railroad  company  ordinarily  has,  it  is  held, 
implied  authority  to  contract  to  furnish  cars  sufficient  for  the 
shipper's  goods  on  a  certain  day,  and  if  the  agreement  is  one 
within  the  apparent  scope  of  the  agent's  authority,  it  makes  no 
difference  if  in  fact  he  has  instructions  to  the  contrar}*,  and  the 
railroad  company  is  liable  for  failure  to  furnish  the  cars,  in  ac- 
cordance with  well-known  principles  of  agency.^  Though  under 
an  extraordinary  press  of  business  the  carrier  may  refuse  to  ac- 
cept goods,  yet  if  he  accepts  them  under  such  circumstances  that 
he  cannot  transport  them  within  the  time  usual  in  the  conduct  of 
his  business,  and  does  not  inform  the  shipper  of  the  necessity  of 
delay,  he  is  liable.^ 

Central  of  Ga.  R.  Co.  v.  Sigma  Lum-  Co.,   189  N.  Y.  93,  81  N.  E.  766,  13 

ber  Co.,  170  Ala.  627,  54  So.  205,  Ann.  L.  R.  A.  (N.  S.)  164n,  12  Am.  &  Eng. 

Cas.  1912D.  965.  Ann.  Cas.  883,  121  Am.  St.  848. 

'Illinois  Cent.  R.  Co.  v.  Bundy,  97  ^Baltimore  &c.  R.  Co.  v.  Tison, 
111.  App.  202;  Gulf  &c.  R.  Co.  v.  116  111.  App.  48,  38  N.  E.  186;  Pitts- 
House,  40  Tex.  Civ.  App.  105,  88  S.  burg,  C.  C.  &  St.  L.  R.  Co.  v.  Racer, 
W.  1110;  Nichols  v.  Oregon  Short  10  Ind.  App.  503,  Zl  N.  E.  280;  Wood 
Line  R.  Co.,  24  Utah  83,  66  Pac.  v.  Chicago,  M.  &  St.  P.  R.  Co..  68 
768,  91  Am.  St.  778;  Ayres  v.  Chi-  Iowa  491,  27  N.  W.  473,  56  Am.  Rep. 
cago  &  N.  W.  R.  Co.,  71  Wis.  112,  861;  Harrison  v.  Missouri  Pac.  R. 
n  N.  W.  432,  5  Am.  St.  226.  But  Co.,  74  Mo.  364,  41  Am.  Rep.  318; 
the  carrier  is  not  liable  for  loss  Fremont  &c.  R.  Co.  v.  Waters,  50 
caused  by  oranges  freezing  on  the  Nebr.  592,  70  N.  W.  225 ;  McCarty 
trees,  because  of  failure  to  transport  v.  Gulf  &c.  R.  Co.,  79  Tex.  Zl,  15  S. 
for    hire    and    deliver    in    reasonable  W.   164. 

time  boxes  for  shipping  the  oranges,        ® Elliott    R.    R.    (2d    ed.),    §    1471; 

there   being   no   contract   as   to   time  St.  Louis  &  S.  W.  R.  Co.  v.  Mitchell 

and    the     carrier    not    knowing    the  (Ark.),   142  S.  W.  168,  11  L.   R.   A. 

oranges  would  be  left  on  the  trees.  (N.  S.)  546;  Palmer  v.  Atchison  &c. 

Williams  V.  Atlantic  Coast  L.  R.  Co.,  R.    Co.,    101    Cal.    187,    35    Pac.   630; 

56  Fla.  735,  48  So.  209,  24  L.  R.  A.  Pittsburg.  C.   C.  &  St.  L.  R.   Co.  v. 

(N.  S.)    134n,  131  Am.  St.  179.    See  Racer,  5  Ind.  App.  209,  31  N.  E.  853; 

Di    Giorgio    Importing     &c.     Co.    v.  Daoust  v.  Chicago  R.  I.  &  P.  R.  Co., 

Pennsvlvania  R.  Co.,  104  Md.  693,  65  149  Iowa  650;    Ayres   v.    Chicago  & 

Atl.  425,  8  L.  R.  A.   (N.  S.)   108n.  N.  W.  R.  Co..  71  Wis.  ol2,  37  N.  W. 

*  Clark  V.   Ulster  &  Delaware   R.  432,  S  Am.  St.  226. 


170 


BAILMENTS. 


§  154.  Duty  to  furnish  suitable  accommodations. — The 
carrier's  means  of  transportation  must  be  safe  and  suitable,  and 
defect  in  his  vehicle  is  not  an  excuse  for  damage  to  the  goods.^ 
For  instance,  the  owner  of  a  vessel  who  holds  himself  out  to  be 
a  common  carrier  engages  in  the  contract  implied  by  law  that  the 
vessel  is  seaworthy  and  fit  for  the  voyage.^  A  shipper,  however, 
may  assent  to  the  use  of  a  defective  vehicle,^  while  in  certain 
jurisdictions  if  the  shipper  selects  a  car,  the  railroad  company 
is  not  liable  for  loss  caused  by  a  defect  in  such  car.^°  It  is  gen- 
erally no  excuse  to  the  carrier  that  the  vehicles  belonged  to  an- 
other, as  to  a  refrigerator  car  company,^^  and  even  a  stipulation 
in  the  bill  of  lading  that  the  shipper  has  accepted  the  car  and 
found  it  suitable  and  sufficient  has  been  held  not  to  free  the  car- 
rier from  the  duty  to  use  suitable  vehicles.^^  An  initial  carrier 
is  liable  for  defective  cars,  when  the  damage  did  not  occur  until 
the  car  was  on  the  connecting  carrier's  line,^^  and  the  connecting 


*  Hutchinson  Carriers  (3d  ed.), 
§  497;  Elliott  R.  R.  (2d  ed.),  §  1472; 
Illinois  Cent.  R.  Co.  v.  Hall,  58 
111.  409;  Hawkins  v.  Great  West- 
ern R.  Co.,  17  Mich.  58,  18  Mich. 
427;  Alabama  &c.  R.  Co.  v-  Searles, 
71  Miss.  744,  16  So.  255 ;  Sloane  v.  St. 
Louis  &c.  R.  Co.,  58  Mo.  220;  Og- 
densburg  &c.  R.  Co.  v.  Pratt,  22  Wall. 
(U.  S.)  123,  22  L.  ed.  827;  cases  cited 
in  note  8,  post.  A  carrier  is  liable 
for  the  loss  by  leakage  of  flax,  where 
the  inside  doors  of  the  car  were  not 
properly  fastened  by  the  shipper,  and 
the  carrier's  agent,  knowing  this, 
closed  the  outside  door,  and  sealed 
the  car.  Duncan  v.  Great  Northern 
R.  Co.,  17  N.  Dak.  610,  118  N.  W. 
826,  19  L.  R.  A.  (N.  S.)  952  and 
note.  A  railroad  company  is  liable 
for  the  rusting  of  metal  caused  by 
the  car  having  previously  been  loaded 
with  soda  ash.  Cleveland,  C.  C.  &  St- 
L.  R.  Co.  v.  Louisville  Tin  &  Stove 
Co.,  33  Ky.  L.  924.  Ill  S.  W.  358,  17 
L.  R.  A.  (N.  S.)  1034  and  note. 

*Lyon  V.  Mells,  5  East  428;  Sharp 
V.  Grey,  9  Bing.  457;  Camden  &c. 
Transp.  Co.  v.  Burke,  13  Wend.  (N. 
Y.)  611;  Propeller  Niagara  v.  Cordes, 
21  How.  (U.  S.)  7,  16  L.  ed.  41; 
The  Northern  Belle,  9  Wall.  (U.  S.) 
526. 

"Coupland  v.  Housatonic  R.   Co., 


61  Conn.  531,  23  Atl.  870,  15  L.  R.  A. 
534;  Hoosier  Stone  Co.  v.  Louisville 
&c.  R.  Co.,  131  Ind.  575,  31  N.  E. 
365 ;  Potts  v.  Wabash,  St.  L.  &  P.  R. 
Co.,  17  Mo.  App.  394. 

'"Carr  v.  Schafer,  15  Colo.  48,  24 
Pac.  873;  Frohlich  v.  Pennsylvania 
R.  Co.,  138  Mich.  116,  101  N.  W. 
223,  110  Am.  St.  310,  4  Am.  &  Eng. 
Ann.  Cas.  1140;  Harris  v.  Northern 
Ind.  R.  Co.,  20  N.  Y.  232;  contra,  Cin- 
cinnati, N.  O.  &  T.  P.  R.  Co.  v.  Fair- 
banks, 90  Fed.  467,  33  C.  C.  A.  611; 
Louisville  &c.  R.  Co.  v.  Dies,  91  Tenn. 
177,  18  S.  W.  266,  30  Am.  St.  871. 

"  Cincinnati,  N.  O.  &  T.  P.  R.  Co- 
V.  Fairbanks,  90  Fed.  467,  33  C.  C.  A. 
611;  Mathis  v.  Southern  R.  Co.,  65  S. 
Car.  271,  43  S.  E.  684,  61  L.  R.  A. 
824;  Louisville  &  N.  R.  Co.  v.  Dies, 
91  Tenn.  177,  18  S.  W.  266,  30  Am. 
St.  871;  New  York,  Philadelphia  &c. 
R.  Co.  V.  Cromwell,  98  Va.  227,  35 
S.  E.  444,  49  L.  R.  A.  462,  81  Am. 
St.  722. 

"Cincinnati,  N.  O.  &  T.  P.  R.  Co. 
V.  Fairbanks,  90  Fed.  467,  33  C. 
C.  A.  611.  It  is  held  that  the  carrier 
cannot  devolve  upon  the  shipper  the 
duty  of  inspecting  the  car  furnished. 
Blatcher  v.  Philadelphia,  Baltimore 
&c.  R.  Co.,  31  App.  (D.  C.)  385,  16  L. 
R.  A.  (N.  S.)  991. 

'^St.  Louis,  I.  M.  &  S.  R.  Co.  v. 


LIABILITIES   OF    CARRIERS. 


171 


carrier  is  also  liable/*  If  proper  care  of  the  goods  demands,  the 
carrier  must  inspect  his  vehicles  while  in  transit.^'  Although  a 
bill  of  lading  may  provide  that  goods  are  carried  at  the  owner's 
risk  of  fire,  yet  the  carrier  must  use  appliances  which  are  rea- 
sonably safe  against  fire.** 

§  155.  Duty  to  furnish  cars  suitable  to  particular  classes 
of  freight. — The  carrier  must  furnish  vehicles  and  accommo- 
dations suitable  for  particular  classes  of  freight  which  he  under- 
takes to  carry,  according  to  the  needs  of  the  freight,  especially 
where  he  carries  animals  or  perishable  freight/^  So,  it  is  held,  the 
carrier  must  provide  a  refrigerator  car  for  butter  in  hot  weather," 
or  perishable  fruit  in  winter,^®  or,  in  any  instance,  cars  specially 
adapted  to  the  transportation  of  perishable  fruit,"''  must  ice  re- 
frigerator cars  properly  during  transportation,"^  must  furnish  a 
ventilated  car  for  dried  apples,^^  and  a  carrier  of  milk  must  pro- 


Marshall  (Ark.),  86  S.  W.  802; 
Bloomington  &c.  R.  Co.  v.  Strain,  81 
111.  504;  Alabama  &c.  R.  Co.  v. 
Searles,  71  Miss.  744,  16  So.  255; 
Texas  Cent.  R.  Co.  v.  O'Loughlin 
(Tex.  Civ.  App.),  84  S.  W.  1104; 
Ogdensburg  &c.  R.  Co.  v.  Pratt,  89 
U.  S.  123,  22  L.  ed.  827. 

"Shea  V.  Chicago,  R.  I.  &  P.  R. 
Co.,  66  Minn.  102,  68  N.  W.  608; 
Wallingford  v.  Columbia  &c.  R.  Co., 
26  S.  Car.  258,  2  S.  E.  19. 

"Ruppel  V.  Allegheny  Valley  R. 
Co.,  167  Pa.  St.  166,  31  Atl.  478,  46 
Am.  St.  666. 

^  Levering  v.  Union  Transp.  &  Ins. 
Co.,  42  Mo.  88,  97  Am.  Dec.  320; 
New  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants' Bank,  6  How.  (U.  S.)  344,  12 
L.  ed.  465. 

"  See  cases  following,  and  for  a 
general  list  of  cases  thus  holding,  see 
note  15  Am.  &  Eng.  Ann.  Cas.  144. 

"Beard  v.  Illinois  Cent.  R.  Co., 
79  Iowa  518,  44  N.  W.  800,  7  L.  R. 
A.  280,  18  Am.  St.  381. 

"Merchants'  Dispatch  &  Transp. 
Co.  V.  Com  forth,  3  Colo.  280.  But 
a  carrier  is  not  negligent  who  follows 
a  well-known  custom  not  to  change 
ventilators  on  cars  in  which  fruit 
is  shipped  unless  shipper  so  instructs, 
though  it  causes  the  freezing  of  the 
fruit.    Schwartz  v.  Erie  R.  Co.,  128 


Ky.  22,  106  S.  W.  188,  15  L.  R.  A. 
(N.  S.)  801  and  note. 

'"St.  Louis,  I.  M.  &  S.  R.  Co.  V. 
Renfroe,  82  Ark.  143,  100  S.  W.  889, 
10  L.  R.  A.  (N.  S.)  3l7n,  118  Am.  St. 
58. 

=^St.  Louis,  L  M.  &  S.  R.  Co.  v. 
Renfroe,  82  Ark.  143,  100  S.  W.  889, 
10  L.  R.  A.  (N.  S.)  317,  118  Am.  St. 
58;  Taft  Co.  v.  American  Exp.  Co., 
133  Iowa  52?.  110  N.  W.  897,  10  L.  R. 
A.  (N.  S.)  614,  119  Am.  St.  642.  A 
carrier  who  contracts  to  ice  cars  for 
tomatoes  is  not  excused  for  failure 
by  a  rule  of  the  company  not  to  ice 
unless  600  pounds  of  ice  can  be  put  in 
the  car  tank.  Orem  Fruit  &  Produce 
Co.  v.  Northern  Cent.  R.  Co.,  106  Md. 
1,  66  Atl.  436,  124  Am.  St.  462.  The 
carrier  must  ice  fruit  if  needed,  al- 
though the  shipper  knew  it  was  not 
properly  iced  before  shipping,  but 
had  no  opportunity  to  remedy  this 
and  thought  the  shipment  would 
complete  the  Journey  safely.  John- 
son v.  Toledo  &c.  R.  Co.,  133  Mich. 
596,  95  N.  W.  724,  103  Am.  St.  464. 

**F.  D.  Forrester  v.  Southern  R. 
Co.,  147  N.  Car.  553.  15  Am.  &  Eng. 
Ann.  Cas.  143  and  note.  61  S.  E.  524, 
18  L.^  R.  A.  (N.  S.)  508.  and  note. 
In  this  case  it  was  held  that  it  was 
immaterial  that  the  shipper  knew  the 
character  of  car  to  be  used. 


172  BAILMENTS. 

vide  reasonable  facilities,  including  proper  cars,  and,  it  seems,  a 
caretaker  during  transportation.^^  Certain  goods  must  not  be 
carried  on  open  cars,  as  cotton  through  a  district  where  fires  are 
raging,-*  or  oil,  exposing  it  to  the  sun  and  destroying  it.-^ 

§  156.  Duty  to  show  no  preference. — The  common  car- 
rier, as  a  general  rule,  must  give  no  preferences,  show  no  favors, 
or  make  no  discriminations  in  favor  of  one  who  offers  goods  to 
ship  over  another  who  offers.  Where  the  conditions  and  circum- 
stances are  the  same,  the  carrier  cannot  send  one's  goods  sooner 
than  another's,  cannot  accept  one's  and  refuse  another's  without 
good  reason,  nor  give  to  one  better  accommodations  than  to  an- 
other.^^  Sometimes,  however,  a  difference  in  the  situation  as  to 
the  carrier  justifies  a  difference  in  treatment,  so  a  railroad  com- 
pany may  furnish  cars  under  one  rule  to  those  who  load  on  their 
own  tracks  from  a  tipple,  and  under  another  to  those  who  load  on 
the  company's  tracks  from  a  wagon.^^  Some  cases  hold  that  a 
railroad  is  not  compelled  to  give  to  one  express  company  equal 
facilities  and  accommodations  with  those  furnished  to  another,^* 
but  many  authorities  hold  that  a  railroad  company  cannot  dis- 
criminate between  express  companies-''  on  the  ground  that,  being 
common  carriers,  they  owe  an  equal  duty  to  each  citizen.  The 
United  States  Supreme  Court  has  held  that,  as  to  interstate 
commerce,  railroads  are  not  obliged  to  furnish  to  all  independent 
express  companies  equal  facilities,  since  neither  by  usage  nor  com- 
mon law  are  they  required  to  do  so,  nor  to  do  more  than  to  fur- 
nish to  the  general  public  reasonable  express  accommodations.^" 

^'  Baker  v.  Boston  &  M.  R.  Co.,  74  -'  Choctaw  &c.  R.  Co.  v.  State,  73 

N.  H.  100,  65  Atl.  386,  124  Am.  St.  Ark.  373,  84  S.  W.  502,  92  S.  W.  26. 

937,  12  Am.  &  Eng.  Ann.  Cas.  1072.  ""  Pfister  v.  Central  Pac.  R.  Co.,  70 

^Insurance  Co.  of  North  America  Cal.   169,    11    Pac.  686,   59  Am.   Rep. 

V.   St.   Louis,   I.   M.   &   S.  R.   Co.,  3  404;  Louisville  N.  A.  &  C.  R.  Co.  v. 

McCrary  (U.  S.)  233.  Keefer,  146  Ind.  21,  44  N.  E.  796,  38 

=*  Grand  Trunk  R.  Co.  v.  Fitzger-  L.  R.  A.  93,  58  Am.  St.  348;  Express 

aid  (Can.),  5  Can.  Sup.  Ct.  204.  Cases.  117  U.  S.  1,  29  L.  ed.  791,  6 

^"Elliott   R.  R.    (2d  ed.),   §§    1467,  Sup.  Ct.  542. 

1468    and    cases    cited ;    Hutchinson  ^  New  England  Exp.  Co.  v.  ]\Iaine 

Carriers    (3d    ed.),    §    512;    Fish    v-  Cent.   R.   Co.,   57   Maine   188,  2  Am. 

Chapman,  2  Ga.  349,  46  Am.  Dec.  393;  Rep.  31;  McDuffee  v.  Portland  &  R. 

New    England    Exp.    Co.    v.    Maine  R.  Co.,  52  N.  H.  430,  13  Am.  Rep.  72; 

Cent.   R.   Co..   57  Maine   188,  2   Am.  Sanford  v.  Railroad  Co.,  24  Pa.  St. 

Rep.   31;    Hillsdale    Co.    v.    Pennsyl-  /378,  64  Am.  Dec.  667. 

vania  R.  Co.,  229  Pa.  St.  61,  78  Atl-  w     ^Express  Cases.  117  U.  S.  1,  29  L. 

28,  140  Am.  St.  700.  ed.  491.  6  Sup.  Ct.  542,  628. 


LIABILITIES    OF    CARRIERS.  1 73 

One  express  company  may  use  the  facilities  of  another  express 
company  only  on  the  same  terms  as  the  general  public,  and  not  in 
such  a  way  as  to  interfere  with  the  other  company's  business.'^ 
A  carrier  may  not  discriminate  between  preceding  connecting 
carriers,  but  must  carry  for  them  on  the  same  terms  as  the  gen- 
eral public.^^  However,  as  to  succeeding  connecting  carriers,  the 
first  carrier  may  select  whatever  ones  he  wishes  in  the  absence  of 
contract.^^  All  shippers  of  the  same  kind  of  goods  applying  for 
cars  at  the  same  time  at  the  same  station  have  equal  rights,  and 
the  carrier  has  no  right  to  favor  one.^*  There  is  some  conflict 
in  the  cases  as  to  whether  a  railroad  carrier  is  obliged  to  transport 
the  cars  of  other  railroad  companies,  the  better  view  being  that 
it  must,^^  but  some  cases  hold  that  the  railroad  company  can 
compel  a  transfer  of  the  goods  into  its  own  cars  before  carry- 
ing them.^^  Discrimination  in  rates  will  be  treated  under  the 
head  of  compensation.  Under  the  common  law,  the  carrier 
might  to  a>  certain  degree  discriminate  in  rates,  that  is,  he  might 
in  each  case  charge  a  reasonable  compensation  depending  upon 
the  particular  circumstances,  and  this  does  not  imply  absolute  uni- 
formity of  rates,  but,  instead,  that  there  shall  be  no  unjust  dis- 
crimination.^' 

"Hutchinson     Carriers     (3d    ed.),  Co.  v.   Cook  Brewing  Co.,  172  Fed. 

§    518,    citing    Johnson    v.    Dominion  117,  96  C.  C.  A.  322. 

Exp.  Co.,  28  Ont.  203.  »  See  Elliott  R.  R.  (2d  ed.),  §  1395, 

*' Hutchinson     Carriers     (3d     ed.),  approving   the    rule   as   a    reasonable 

§  519;  Elliott  R.  R.  (2d.  ed.),  §  1394;  one  which  would  promote  the  inter- 

Hedding  v.  Gallagher,  72  N.  H.  2)11,  ests    of    commerce.      Peoria    &c     R 

57  Atl.  225,  64  L.   R.   A.   811.     See  Co.   v.   Chicago,   R.   I.  &   P.   R.   Co., 

§§  247-253,  post.  109  111.  135,  50  Am.  Rep.  605,  18  Am. 

^  St.  Louis  Dravage  Co.  v.  Louis-  &  Eng.   R.  Cas.  506 ;   Burlington  &c. 

ville  &c.  R.   Co.,  65  Fed.  39;   Atchi-  R.   Co.   v.   Dey,  82   Iowa  312,  48   N. 

son  &c.  R.  Co.  V.  Denver  &c.  R.  Co.,  W.  98,  12  L.  R.  A.  436n,  31  Am.  St. 

110  U.   S.  667,  28  L.  ed.  291,  4  Sup.  477,  45  Am.  &  Eng.  R.  Cas.  391;  New 

Ct.  185.  England  Exp.  Co.  v.  Maine  Cent.  R. 

"Great  Western  R.  Co-  v.  Burns,  Co.,  57  Maine  188,  2  Am.  Rep.  31. 

60    111.    284;    Messenger   v.    Pennsvl-  ''Little    Rock    &c.    R.    Co.    v.    St. 

vania  R.  Co.,  7  Vroom   (N.  J.)  407,  Louis  &c.   R.  Co.,  59  F"ed.  400,  affd. 

13  Am.  Rep.  457;  Nicholas  v.  Oregon  63  Fed.  775.   11  C.  C.  A.  417.  26  L. 

Short  Line  R.   Co.,  24  Utah  83,  66  R.  A.  192 ;  Oregon  Short  Line  &c.  R- 

Pac.  768,  91  Am.  St.  778.     A  carrier  Co.  v.  Northern  &c.  R.  Co.,  51  Fed. 

may  not  refuse  to  carry  liquors  into  465.  61  Fed-  158. 

a  state  where  statute  has  made  such  "Elliott   R.    R.    (2d.    ed.),   §    1467, 

an   act   unlawful.     Louisville  &c.   R.  and  cases  cited ;  Hutchinson  Carriers 

(3d  ed.),  §  521,  and  cases  cited. 


174  BAILMENTS. 

§  157.  Duty  as  to  manner  of  carriage. — Especially  in  case 
of  carriage  by  sea,  the  safety  of  the  goods  depends  upon  the  man- 
ner of  stowage,  and  the  carrier  must  use  reasonable  care,  or 
show  a  compliance  with  established  usage  in  the  manner  of  stow- 
age.^* As  was  said  in  a  preceding  section,  a  clean  bill  of  lading 
entitles  the  shipper  to  stowage  under  deck,  and  goods  stowed  on 
deck  without  consent  of  the  shipper,  though  lost  by  perils  of  the 
sea,  are  not  considered  as  lost  by  the  act  of  God,  nor  as  lost  by 
the  perils  of  sea  which  excuse  the  carrier,  unless  it  can  be  clearly 
shown  that  the  manner  of  stowage  did  not  affect  the  loss.^*  In 
the  absence  of  contract,  the  law  implies  that  the  goods  shall  be 
stowed  below  deck,  as  much  as  if  such  condition  were  expressly 
stated.*®  However,  an  established  usage  may  permit  the  carrier 
to  stow  the  goods  on  deck,  or  even  make  it  his  duty  so  to  do." 
Or  if  it  is  necessary  to  the  safety  of  a  certain  kind  of  goods  that 
they  should  be  carried  on  deck,  the  shipowners  are  liable  if  they 
are  damaged  by  being  stowed  below,  as  in  the  case  of  nuts  shipped 
from  San  Francisco  to  New  York.*^  If  the  shipper's  goods  are 
damaged  by  other  goods  stored  in  the  hold  of  the  ship,  the  car- 
rier is  generally  liable,  as  where  flour  is  damaged  by  kerosene,*^ 
or  goods  are  damaged  by  other  goods  received  in  bad  condition.** 
The  rule  that  goods  must  be  stowed  under  deck  applies  only  to 
sailing  vessels  upon  the  seas  and  great  lakes,  and  not  to  steam 
vessels,  or  vessels  upon  inland  waters,*^  which  are  subject  to  the 
general  rules  applicable  to  land  carriers,  with  the  one  exception 
that  as  fires  are  peculiarly  liable  to  occur  on  inland  steamboats, 

"' Hills  V.  Mackill,  36  Fed.  702 ;  The  60    (live    animals);    Tower    Co.    v. 

Thomas  Melville,  31  Fed.  486 ;  Baxter  Southern  Pac.  R.  Co.,  184  Mass.  472, 

V.    Leland,    1    Blatchf.    (U.    S.)    526,  69  N.  E.  348  (oils). 

Fed.  Gas.  No.  1125.  '^The  Star  of  Hope,  17  Wall.  (U- 

^"The  Delaware,  14  Wall.   (U.  S.)^^S.)  651,  21  L.  ed.  719. 
579,  20  L.  ed.  779;   The  Rebecca,   1  ^    «The  Thames,  61  Fed.  1014,  10  C 

Ware  (U.  S.)    (188)   187,  Fed.  Cas.  C.  A.  232,  8  U.  S.  App.  580. 

No.  11619.  ■"The     Gloaming,     46    Fed.     671; 

^'The   New   Orleans,   26   Fed.   44;  Brousseau   v.    Ship    Hudson,   11    La. 

Crooks   V.    The   Fanny   Skolfield,   65  Ann.   427;    Cranwell   v.    Ship   Fanny 

Fed.  814;  Creery  v.  Holly,  14  Wend.  Fosdick.   15  La.    Ann.    436,    11    Am. 

(N.  Y.)  26;  The  Delaware,  14  Wall.  Dec.  190;  The  Bark  Col.  Ledyard,  1 

(U.  S.)  579,  20  L.  ed.  779.  Sprague's  Dec.    (U.  S.)   530. 

^Milward   v.    Hilbert.   Ad.    &   El.  *=Gillett  v.  Ellis,  11  111.  579;  Harris 

(N.  S.)  120  (live  animals)  ;  Da  Costa  v.  Moody,  30  N.  Y.  266,  86  Am.  Dec 

V.    Edmunds,   4   Camp.    141    (oils) ;  375. 
Brown  v.  Cornwell,  1  Root  (Cona) 


LIABILITIES    OF    CARRIERS.  1 75 

their  freight  must  be  loaded  so  as  to  avoid  danger  from  such  a 
source  if  possible,  and  if  the  goods  are  negligently  exposed  to 
fire,  the  carrier  loses  the  benefit  of  the  bill  of  lading  exemption 
of  liability  for  loss  by  fire.*°  A  railroad  carrier  is  likewise  liable 
for  loss  occasioned  by  its  failure  to  properly  stow  goods.*' 

§  158.  Duty  to  obey  shipper's  directions. — The  implied 
condition  in  contracts  of  carriage  is  that  the  goods  will  be  con- 
veyed and  stowed  in  the  manner  customary  in  their  business, 
which  may  be  proved  as  a  usage,*^  but  if  the  goods  are  accepted 
to  be  carried  according  to  particular  directions  of  the  shipper, 
the  general  rule  is  that  these  directions  control  over  established 
usage,  and  the  carrier  is  liable  as  an  insurer  for  loss  caused  by 
failure  to  follow  the  directions,  and  loses  the  benefit  of  any 
contract  limitations  of  liability.^^  So  if  a  case  is  marked  "Glass. 
With  care.  This  side  up,"  this  is  a  sufficient  notice  to  the  carrier 
of  the  manner  in  which  the  case  can  be  carried  safely,^**  or  if 
crates  of  roofing  are  marked  "Lay  flat."^*  Where  a  horse  was 
carried  in  an  open  car,  when  the  owner  had  directed  him  to  be  car- 
ried in  a  closed  car,  the  company  was  charged  with  damages  occa- 
sioned by  cold  weather  and  exposure.^^  Where  goods  were  to 
be  forwarded  from  the  carrier's  destination  by  a  certain  line  of 
boats,  whose  agent  refused  to  receive  them,  and  the  carrier  sent 
them  by  a  barge,  from  which  they  were  lost,  the  original  carrier 
was  held  liable  for  failure  to  obey  directions,  the  court  holding 
that  upon  the  agent's  refusal  the  carrier  should  have  notified  the 
shipper  for  further  instructions,  or  placed  the  goods  in  a  ware- 

^The  New  Jersey  Steam  Nav.  Co.  Am.  St.  569;  Johnson  v.  New  York 

V.  Merchants'  Bank,  6  How.  (U.  S.)  Cent.  R.  Co.,  33  N.  Y.  610,  88  Am. 

344,  12  L.  ed.  465-  Dec.  416;  United  States  Exp.  Co.  v. 

*' Hutchinson    Carriers     (3d    ed.),  Kountz,  8  Wall.   (U.  S.)  342,  19  L. 

§  610.  ed.  457- 

**  Northern  Pac.  R.  Co.  V.  Kempton,  ^"Hastings     v.     Pepper,     11    Pick. 

138  Fed.  992,  71  C.  C.  A.  246;  Milny  (Mass.)  41. 

V.  Chicago.   M.  &  St.  L.   P.  R.   Co.,  "  Colbath  v.  Bangor  &c.  R.  Co.,  105 

98  Iowa  188,  67  N.  W.  276;  Shelton  Maine  379,  74  Atl.  918,  134  Am.  St. 

V.  Merchants'  Despatch  Transp.  Co.,  569. 

59  N.  Y.  58,  48  How.  Pr.   (N.  Y.)  ''Sager  v.  Portsmouth  &c.  R.  Co.. 

257.  31  Maine  228,  50  Am.  Dec.  659.     See, 

** Elliott  R.   R.    (2d   ed.),   §    1490;  however,  and  compare  Colsch  v.  Chi- 

Streeter  v.  Horlock,  1  Bing.  34 ;  Mer-  cago,  M.  &  St.  P.  R.  Co.,  149  Iowa 

chants'  Despatch  Transp.  Co.  v.  Kahn,  176,  127  N.  W.  198,  34  L.  R.  A.   (N. 

76  111.  520;  Colbath  v.  Bangor  &c.  R.  S.)  1013n,  Ann.  Cas.  1912C,  915  and 

Co..  105  Maine  379,  74  Atl.  918,  134  note. 


176  BAILMENTS. 

house."  Yet  if  emergency  requires  for  the  safety  of  the  goods, 
the  carrier  may  disregard  instructions/*  And  if  injury  occurs 
because  the  shipper's  directions  were  followed,  the  carrier  is  not 
chargeable  with  the  loss. 

§  159.  Carrier  must  choose  safest  route  where  more  than 
one. — The  carrier  must  generally  transport  by  the  usual  di- 
rect route/ ^  He  may  ordinarily  choose  the  route  where  there 
are  more  than  one,  if  both  are  equally  safe/^  When  a  carrier 
knowingly  chooses  a  dangerous  route,  instead  of  a  safe  one, 
he  is  liable  for  injury  to  the  goods  caused  by  such  known  danger, 
as  where  gold  dust  taken  by  a  quicker  route  through  Missouri, 
known  to  be  dangerous,  which  might  have  been  carried  by  a 
slower,  safe  route  through  Iowa,  was  lost  by  robbery,^^  or  again, 
where  the  usual  route  was  obstructed  temporarily,  and  the  car- 
rier, without  notifying  the  shipper,  sent  oranges  over  a  road 
where  at  that  season  frosts  were  likely  to  occur,  and  the  oranges 
were  damaged  by  frost.^^  If  the  carrier's  option  as  to  choice 
of  routes  is  not  exercised  in  the  interest  of  the  shipper,  but  to  his 
disadvantage,  it  may  be  regarded  as  a  breach  of  the  contract/'' 
If  there  is  tempestuous  weather,  or  if  there  are  unusual  dangers 

"'Johnson  v.   New   York  Cent.   R.  v.  Ashton,  51  N.  Y.  280;  Hinckley  v. 

Co.,  33  N.  Y.  610,  88  Am.  Dec.  416.  N.  Y  Cent.  &c.  R.  Co.,  56  N.  Y.  429 ; 

"Alabama  &c.   R.   Co.  v.   Thomas,  Empire   Transp.    Co.    v-    Wallace,   68 

89  Ala.  294,  7  So.  762,  18  Am.  St.  119;  Pa.  St.  302,  8  Am.  Rep.  178;  Post  v. 

Empire  State  Cattle  Co.  v.  Atchison  Southern  R.  Co.,  103  Tenn.  184,  52  S. 

R.   Co.,    129  Fed.   480,   135  Fed.   135,  W.  301,  55  L.  R.  A.  481.  Where  there 

affd.   147  Fed.  457,  77  C.  C.  A.  601,  -  are  two  routes  the  carrier  is  not  lia- 

and  210  U.    S.    1,    5    L.    ed.   931,   28  ble  for  injury  caused  by  following  its 

Sup.  Ct.  607;  Regan  v.  Grand  Trunk  usual  and  customary  route,  although 

R.  Co.,  61  N.  H.  579;  Johnson  v.  New  the  injury  might  have  been  prevented 

York  Cent.  R.  Co.,  33  N.  Y.  610,  88  by  following  a  shorter  route.     H.  S- 

Am.  Dec.  416.  Emerson  Co.  v.  Reunis,  65  Wash.  513, 

« Denver  &c.  R.  Co.  v.  DeWitt,  1  118   Pac.  631,  37  L.   R.   A.    (N.   S.) 

Colo.    App.   419,   29    Pac.   524 ;    Mer-  222  and  note. 

chants'     Despatch     Transp.     Co.     v.  "United     States    Express    Co.    v. 

Kahn,  76  111.  520;  Powers  v.  Daven-  Kountze,  8  Wall.   (U.  S.)  342,  19  L. 

port,   7   Blackf.    (Ind.)    497.  43  Am,  ed,  457. 

Dec.  100;  United  States  Exp.  Co.  v.  "'Pierce  v.   Southern   Pac.  R.   Co., 

Kountze,  8  W^all.   (U.  S.)  342,  19  L.  120  Cal.  156,  52  Pac.  302,  47  Pac.  874. 

ed.  457.  40  L.  R.  A.  350. 

•^Simkins    v.    Norwich    &    N.    L.  **»  Stewart   v.    Comer,    100   Ga.    754. 

Steamboat    Co.,     11     Cush.     (Mass.)  28  S.  E.  461.  62  Am.  St.  353;  Blitz  v. 

102;  Glover  v.  Cape  G.  &c.  R.  Co.,  95  Union  Steamboat  Co.,  51  Mich.  558. 

Mo,  App,  369,  69  S.  W,  599;  White  17  N,  W.  55. 


LIABILITIES    OF    CARRIERS.  I77 

attending  the  usual  route,  it  may  become  the  duty  of  the  carrier 
to  deviate  therefrom.*^** 

§  160.     Special  duties  arising  under  special  contract — Ef- 
fect of  deviation  from  contract. — A  carrier  who  has  made  a 

contract  to  carry  in  a  particular  manner  or  at  or  within  a  certain 
time,  is  usually  held  strictly  to  its  terms,  and  any  deviation  there- 
from will  deprive  him  of  the  benefit  of  contract  limitations  of 
liability.^^  Where  goods  to  be  shipped  by  a  particular  vessel 
were  sent  on  another  of  the  same  line,  which  was  lost,  the  carrier 
had  to  answer.*^-  An  express  stipulation  of  this  kind  may  not 
be  varied  by  usage  or  custom.*'^  A  carrier  who  contracts  to  carry 
by  land  is  liable  for  loss  if  he  carries  by  water.  If  he  contracts 
to  carry  on  a  steam  vessel  and  carries  by  a  sailing  vessel,  or  if 
he  contracts  to  carry  by  *'all  rail"  and  for  a  portion  of  the  dis- 
tance ships  by  steamboat,  he  has  so  failed  to  comply  with  the  con- 
tract as  to  lose  the  benefit  of  a  clause  exempting  him  from  lia- 
bility for  loss  by  fire,  when  the  goods  were  burned  in  his  depot."* 
One  who  contracted  to  carry  by  all  rail  from  Cincinnati  to  New 
York,  and  who  put  the  goods  on  a  steamer  at  Baltimore,  was 
liable  for  the  loss  occasioned  by  the  wrecking  of  the  steamer."' 
Where  there  was  a  contract  to  ship  without  change  of  cars,  and  a 
change  of  cars  caused  injury,  the  carrier  was  held  liable.®*  In- 
stances of  this  kind  might  be  multiplied  greatly. 

§  161.     Construction  of  clauses  permitting  delay  or  devia- 
tion.— Sometimes  the  printed  general  form  of  contract  used 

"Phelps  V.   Hill    (1891),    1   Q.   B.  American  Exp.   Co.,  and  cases  cited 

605,  60  L.  J.  Q.  B.  382.  therein. 

*'  Post    V.    Southern    R.    Co.,    103  '"  Goodrich  v.  Thompson,  44  N.  Y. 

Tenn.  184,  52  S.  W.  301,  55  L.  R.  A.  324. 

481;    Missouri,    K.    &   T.    R.    Co.    v.  «' Louisville    &    C.    Packet    Co.    v. 

Leibold   (Tex.  Civ.  App.),  55  S.  W.  Rogers,  20  Ind.  App.  594,  49  N.  E. 

368.     Where  the   contract   was    that  970. 

horses    were    to    be    carried    by    one  **  Maghee  v.  Camden  &c.  R.  Co.,  45 

train   and  the  carrier  sent   them  by  N.  Y.  514,  6  Am.  Rep.  124. 

another,    he    abandoned    his    special  "^  Bostwick   v.    Baltimore   &   O.    R. 

contract,  and  v/as    thus   deprived   of  Co.,  45  N.  Y.  712. 

the  right  to  benefit  by  a  clause  fixing  ^  Stewart    v.    Merchants'    Despatch 

an  agreed  value  in  case  of  loss.    Mc-  Transp.    Co.,    47    Iowa   229,    29    Am. 

Kahan    v.    American    Exp.    Co.,    209  Rep.    476;    Felton    v.    McCrearv    &c- 

Mass.  270,  95  N.  E.  785.  35  L.  R.  A.  Live  Stock  Co.,  22  Ky.  L.  1058,  59 

(N.  S.)   1046.     See  note  in  35  L.  R.  S.  W.  744. 
A.    (N.    S.)    1046   to    McKahan    v. 
Bailments — 12 


1 78  BAILMENTS. 

contains  words  which  would  permit  of  considerable  deviation, 
but  these  are  ordinarily  construed  in  reference  to  the  main  object 
of  the  particular  contract  of  shipment.  In  the  leading  case  there 
was  a  charter  party  to  carry  oranges  from  Malaga  to  Liverpool, 
and  the  ship  took  on  cargo  also  at  a  port  350  miles  from  Malaga, 
and  it  was  held  that  the  carrier  was  not  justified  in  the  deviation 
by  certain  general  printed  words  giving  the  liberty  to  proceed 
to  and  stay  at  any  port  or  ports  in  any  rotation  in  certain  coun- 
tries and  regions  named,  but  that  this  liberty  granted  was  only 
such  as  was  consistent  with  the  main  object  of  the  contract,®^ 
Neither  does  a  clause  reserv^ing  the  right  to  tow  and  assist  vessels 
in  all  situations  justify  unnecessary  deviation  in  taking  a  vessel 
for  salvage  purposes  to  a  port  not  the  most  reasonably  accessi- 
ble.*^^ If  the  shipper  miscontrues  the  bill  of  lading,  and  thereby 
suffers  loss,  the  carrier  is  not  liable.^^ 

§  162.  Contracts  to  carry  within  certain  time. — It  has  often 
been  held  that  a  carrier  who  agrees  to  carry  to  a  certain  point 
within  a  certain  time  will  be  held  absolutely  to  his  contract,  and 
will  be  liable  for  loss  occasioned  by  his  failure  so  to  do,  even  if 
it  were  absolutely  impossible  for  him  to  have  carried  it  out,  or  if 
inevitable  accident  prevented,  for  he  might  have  contracted 
against  liability  in  such  an  event.'"  A  carrier  who  undertakes  to 
carry  goods  in  a  certain  time  to  a  port  which  he  knows  is  block- 

*^  Glynn  v.  Margetson,  L.  R.  (1893)  lied  upon  the  contract  as  an  absolute 

App.  Cas.  351,  62  L.  J.  Q.  B.  466.  d'ne  to  carry  the  goods  upon  the  first 

**  Schwazchild  v.  National  Steam-  yship.  The  Kansas,  87  Fed.  766;  The 
ship  Co.,  74  Fed.  257.                            v  /Brittannia,  87  Fed.  495. 

'» Where  metal  was  to  be  shipped^      '"Hadley   v.    Clarke,  8   T.   R.   259, 

by  a  certain  steamship,  but  the  bill  4  R.   R-  641 ;  Chicago  &  A.   R.   Co. 

provided  that  if  the  goods  should  be  v.    Thrapp,    5    111.   App.   502 ;    Stoner 

prevented  from  going  in  such  steam-  v.   Chicago  G.  W.   R.  Co-,   109  Iowa 

ship,  the  carrier  should  have  liberty  551,  80  N.  W.  569;   Ruddell  v.  Og- 

to    forward    them    by    a    succeeding  dens'burg  Transit  Co..  117  Mich.  568, 

steamship,  and  because  of  preference  76  X.  W.  380,  44  L.  R.  A.  415 ;  Har- 

given  to  perishable  freight,  there  was  rison  v.  Missouri  Pac.  R-  Co.,  74  Mo. 

no  room   for  the  metal  in   the  first  364,  371,  41  Am.  Rep.  318;  Deming  v. 

ship,  and  it  was  sent  by  the  next  one  Grand  Trunk  R.  Co.,  48  N.  H.  455, 

and    totally    lost,    and    the    libelants  2  Am.  Rep.  267;  Place  v.  Union  Exp. 

had  insured  the  goods  as  on  the  first  Co.,  2  Hilton  (N.  Y.)   19.    This  rule 

ship   and   did   not  know   until   after  was  applied  in  a  case  where  a  steam- 

the  loss  that  they  had  not  gone  on  boat  was  to  tow  a  raft  and  entered 

it,    the    shippers    could    not    recover  into  a  contract  to  begin  the  service  in 

from  the  carrier,   the   court  holdmg  the    morning   of    a   certain   day,   but 

that  they  were  mistaken  if  they  re-  altered  its  voyage  to  such  an  extent 


LIABILITIES    OF    CARRIERS.  1 79 

aded,  cannot  set  up  the  blockade  as  an  excuse.''^  Where  a  carrier 
made  a  contract  to  carry  goods  from  New  York  to  Independence, 
Missouri,  in  twenty-six  days,  or  to  pay  ten  cents  per  hundred 
pounds  of  freight  for  each  day's  delay  beyond  that  time,  and  a 
freshet  rendered  a  canal  over  which  he  usually  transported  goods 
impassable,  and  several  weeks'  delay  resulted,  the  carrier  was 
liable  on  his  covenant,  though  the  bill  of  lading  excepted  him 
from  liability  for  unavoidable  accidents.''^  The  carrier  is  not 
liable  for  delay  occasioned  by  the  shipper  in  not  furnishing  the 
goods  for  transportation  within  a  reasonable  time  for  loading 
upon  the  carrier's  vehicle/^  If  the  carrier  receives  goods  wdiich 
he  agrees  not  to  forward  until  a  certain  time,  he  is  charged  with 
the  loss  arising  from  his  shipping  the  goods  before  that  date."'* 

§  163.  Care  of  goods  in  emergencies. — The  general  rule 
is  that  the  carrier  contracts  to  carry  the  goods  safely,  and  when- 
ever, because  of  accident  or  for  any  other  reason,  the  goods 
become  in  a  situation  or  condition  which  requires  special  atten- 
tion, the  carrier  must  generally  be  held  to  stand  in  the  place  of 
their  owner,  and  must  do  for  them  all  that  a  person  of  ordinary 
prudence  and  care  could  reasonably  be  expected  to  do  to  prevent 
further  damage  and  preserve  them,  and  there  may  be  a  situation  in 
which  he  must  incur  expense  to  save  the  goods,  if  justified  by  their 
value.^^     Thus,  where  coffee  in  barrels  and  boxes  carried  in  a 

that  it  did  not  take  on  the  raft  until  less  his  contract  can  be  construed  as 

evening,  and,  a  storm  arising,  the  raft  a  contract  of  insurance  that  they  will 

was   lost,   and   the   steamboat   owner  be   carried  by  a  certain  time   if  not 

was  held  liable  on  the  ground  that  if  destroyed  by  the  act  of  God  or  the 

the   service  had  been  commenced   in  public    enem3%    or    excepted    dangers, 

time,  the  raft  would  have  reached  its  Hutchinson  Carriers   (3d  ed.),  §  627. 

destination   before   the  storm.     Par-  "^  Fowler  v.    Steam   Co,,   87   N.    Y. 

malee  v.   Wilks,  22   Barb.    (N.   Y.)  190. 

539.  ''*  Campion  v.  Canadian   Pac.  Rail- 

"Medeiros  v.  Hill,  8  Bing.  231.  way  Co.,  43  Fed.  775,  11  L.  R.  A.  128. 

'^Harmony    v.    Bingham,    2   Kern.  '* Hutchinson     Carriers     (3d     ed.), 

(N.  Y.)   99,   1   Duer    (N.   Y.   Super.  §§   645,  646;    American   Exp.   Co.   v. 

Ct.)    209.      Mr.    Hutchinson,    in    his  Smith,    33   Ohio    St.    511;    Propeller 

work  on   Carriers,   argues  that  since  Niagara  v-  Cordes,  21   How.   (U.  S.) 

destruction  of  the  goods  by  the  act  7.    16  L.   ed.   41.     See   Pine  Bros.  v. 

of  God  or  the  public  enemy  will  ex-  Chicago.  &c.  R.  Co.    (Iowa),  133  N. 

cuse  the  carrier  from  delivery  at  all,  W.    128,    39   L.    R.    A.    (X.    S.)    639 

even  if  he  has  contracted  to  deliver  and  note,  considering  the   duty  of  a 

within  a  certain  time    (Gage  v.  Tir-  carrier    to   hasten    shipment    or    take 

rell,    9   Allen    (Mass.)    299),    a   pre-  other     precaution     to     prevent     loss 

vention    of    delivery   on   time  by   the  threatened    without    any    antecedent 

same  dangers  should  excuse  him,  uii-  fault  on  its  part. 


l80  BAILMENTS. 

barge  became  wet  from  an  accident,  it  was  the  carrier's  duty  to  ' 
open  the  boxes  and  attempt  to  dry  the  coffee/®  Hkewise  where 
bales  of  furs  carried  on  a  steamboat  became  wet,  the  carrier 
should  have  unpacked  them  and  dried  them,^^  and  where  the  ice 
melted  on  dressed  poultry  because  of  delay,  and  the  same  was 
spoiled  by  the  heat,  the  carrier,  who  had  with  full  understanding 
of  the  situation  done  nothing  to  save  the  freight,  was  liable  for 
the  loss/^  Again  where  a  wine  cask  leaked,  and  the  carrier, 
knowing  it,  did  nothing  to  prevent  it,  and  a  large  quantity  was 
lost,''*  and  where  the  carrier's  servants  permitted  thieves  to  carry 
off  the  contents  of  cars  without  opposing  them,^°  and  where 
beans  became  wet  by  a  leak  of  the  vessel,  and  the  master  put 
back  into  port,  but  did  not  unload  the  beans  and  dry  them^^ — in 
each  instance  the  carrier  was  liable.  Yet  the  carrier  is  not  bound 
to  suspend  his  voyage  to  care  for  the  goods,  and  where  wheat 
carried  on  a  river  steamboat  was  wet  by  the  waves,  the  carrier, 
who  had  the  goods  of  many  owners  on  board,  was  under  no  duty 
to  stop  and  dry  the  wheat  of  one  of  them.^-  Sometimes,  in  the 
case  of  accident,  the  carrier  should  ship  perishable  goods  by  other 
means,  the  expense  of  such  transportation,  however,  being 
charged  to  the  shipper,^^  Although  a  carrier  must  not  give 
preferences  in  shipping,  yet,  of  goods  contracted  to  be  carried,  he 
may  first  load  and  carry  that  which  is  perishable,®*  on  the  ground 
that  the  perishable  goods  require  such  care.  It  is  always  an 
excuse  that  a  preference  was  given  to  the  saving  of  human  life 
rather  than  to  the  care  of  goods  shipped.®^ 

''Bird  V.  Cromwell,   1   Mo.  81,   13  some  states  the  statute  makes  it  the 

Am.  Dec.  470.  duty  of  a  carrier  to   sell  perishable 

"  Choteaux  v.  Leech,  18  Pa.  St.  224,  freight  upon  the  consignee's  refusal 

57  Am.  Dec.  602.  to  receive  it.     Chesapeake  R.  Co.  v- 

'*Peck  V.  Weeks,  34  Conn.  145.  Saulsberry.   126  Ky.    179,    103   S.   W. 

'"Beck  V.  Evans,  16  East  244.  254,  12  L.  R.  A.  (N.  S.)  431n. 

*"  Lang  V.  Pennsylvania  R.  Co.,  154  "  Great  Western   R.   Co.  v.  Burns, 

Pa.  St.  342,  26  Atl.  370,  20  L.  R.  A.  60  111.  284 :  Michigan  Cent.  R.  Co.  v. 

360,  35  Am.  St.  846.  Burrows.  33  Mich.  6;  Tierney  v.  New 

^Notara  v.  Henderson,  L.  R.  5  Q.  York  Cent.  R.  Co.,  10  Hun   (N.  Y.) 

B.  346   (Exch.  Ch.),  L.  R.  7  Q.  B-  569,  67  Barb.   (N.  Y.)  538,  afifd.  76 

225  N.  Y.  305 :  Peet  v.  Chicago  &  N.  W. 

'"  Steamboat  Lynx  v.  King,  12  Mo-  R.    Co,,   20   Wis.   594,   91    Am.    Dec. 

272.  446. 

^  Propeller  Niagara  v.   Cordes,  21  "  Pennsylvania  R.  Co.  v.  Fries,  87 

How.    (U.  S.)   7,  16  L.  ed.  41.     In  Pa.  St.  234. 


LIABILITIES    OF    CARRIERS,  iSl 

§  164.  Carrier's  liability  for  loss. — The  common  carrier's 
liability,  imposed  by  law,  based  upon  considerations  of  public 
policy,  is  that  of  an  insurer  of  the  goods  carried  against  loss  from 
all  sources,  except  the  loss  be  occasioned  by  the  act  of  God,  or 
the  public  enemy,  the  act  of  the  shipper,  public  authority,  or  the 
inherent  nature  of  the  goods.^^  This  liability  may  be  restricted 
by  contract  to  a  certain  degree,  likewise  may  be  enlarged  by  con- 
tract, as  we  shall  see  in  a  later  chapter.  Unless  his  liability  has 
been  enlarged  by  contract,  the  carrier  may  excuse  himself  from 
answering  in  damages  for  loss  to  goods  carried  by  showing  that 
the  loss  was  caused  by  one  of  the  general  exceptions. 

§  165.  Duration  of  extraordinary  liability. — As  has  been 
seen,  the  relation  of  carrier  begins  when  the  goods  have  been 
accepted  for  immediate  transportation.^^  In  general,  it  termi- 
nates when  the  goods  have  been  delivered  to  the  consignee,^^  but 
during  the  time  it  exists,  the  carrier  is  liable  as  an  insurer.  In 
the  case  of  goods  received  for  shipment  at  a  later  date,  however, 
liability  does  not  arise  until  the  time  of  shipping,  the  carrier 
meantime  being  liable  only  as  a  warehouseman  f^  and  in  case  of 
the  delivery  not  being  made  to  the  consignee  within  a  certain  time, 
under  certain  circumstances,  the  carrier  may  become  liable  only 
as  a  warehouseman.^*  This  subject  will  be  further  discussed  un- 
der the  head  of  delivery. 

§  166.  Extent  of  carrier's  liability. — While  acting  as  a 
"warehouseman,  the  carrier's  liability  is  that  of  an  ordinary  bailee, 
and  he  is  held  to  only  an  ordinary  and  reasonable  degree  of  dili- 
gence in  caring  for  the  goods.^^  While  the  relation  of  carrier 
exists,  he  is,  as  we  have  said,  an  insurer  against  all  loss  which 
does  not  arise  from  excepted  perils.  It  thus  becomes  important 
to  ascertain  just  what  the  courts  have  considered  these  generally 
excepted  perils  to  include. 

••Hutchinson     Carriers     (3d     ed),        "See   ante,   §§    131-136. 
§  265;  Elliott  R.  R.  (2d  ed-),  §  1454;         "See  post,  §  227  et  seq. 
Cownie     Glove     Co.     v.     Merchants'        *''See  ante,  §    131   et  seq. 
Dispatch  Transp.  Co.,  130  Iowa  327,        ""  See  post,  §  238. 
106  N.  W.  749,  4  L.  R.  A.   (N.  S.)        "Elliott  R.  R.    (2d.  ed.),  §§   1463, 

1060,  114  Am.  St.  419.  1464,  and>  cases  cited. 


l82  BAILMENTS. 

§  167.  What  is  considered  the  act  of  God. — It  is  agreed 
that  the  carrier  is  not  hable  for  loss  proximately  caused  by  the 
act  of  God,  without  human  intervention,^"  but  the  courts  differ 
as  to  what  is  an  act  of  God.  One  line  of  authority  would  hold 
that  the  act  of  God  is  any  inevitable  or  unavoidable  accident, 
when  such  accident  is  not  brought  about  by  human  agency,  nor 
by  the  carrier's  fault  or  negligence,  a  misfortune  against  which 
no  skill  or  watchfulness  could  guard,  which  must,  in  the  absence 
of  human  agency,  be  ascribed  to  vis  major,  the  act  of  God."^ 
Among  accidents  held  to  be  acts  of  God  in  this  view  of  the  sub- 
ject are  a  snag  lodged  in  the  usual  channel  of  a  river  by  a 
freshet,^*  or  a  hidden  and  unknown  rock  in  the  sea.®^  Another 
line  of  authorities  restricts  the  meaning  of  the  term  to  a  violent 
disturbance  of  the  elements,  such  as  a  storm,  earthquake,  or  flood, 
which  immediately  causes  the  disaster,  or  any  extraordinary  dis- 
turbance of  such  a  character  in  its  vastness  that  an  act  of  man 
cannot  avoid  it.  So  in  this  view  accidents  caused  by  something  in 
existence,  or  by  quiet  change  in  the  physical  world,  are  not  acts 
of  God,  for  these  are  not  in  themselves  causes  of  danger,  but 
causes  which  might  have  been  avoided  if  known,  and  a  loss  caused 
by  them  is  in  part  by  human  agency.®^  So  it  will  be  seen  that 
the  difference  in  the  reasoning  is  largely  a  difference  as  to  what 
may  be  considered  human  agency,  or  what  acts,  ought  to  have 
been  foreseen  by  humans  as  likely,  and  guarded  against.  A  sud- 
den cessation  of  wind,  which  caused  a  sailing  vessel  to  run 
aground,  has  been  held  an  act  of  God,"^  likewise  a  sudden  gust 

•"Hutchinson     Carriers     (3d    ed.),  ''Williams  v.   Grant,   1   Conn.  487, 

§  274;  Elliott  R.  R.  (2d  ed.).  §  1455;  7  Am.  Dec.  235. 

Forward  V.  Pittard,  1  T.  R.  27;  Smith  *°  Hutchinson   Carriers    (3d   ed.),   § 

V   Shepherd,  Abbott  Shipping,  p.  383.  271;   Elliott  R.  R.   (2d  ed.),  §   1455. 

''Hutchinson     Carriers     (3d    ed.),  See  Ferguson  v.  Southern  R.  Co.  (S. 

§  270;  Elliott  R.  R.  (2d  ed.),  §  1455.  Car.),  74  S.  E.  129. 

This      view      is      taken      by      Judge  "^  Colt  v.  McMechen,  6  Johns.    (N. 

Story.    Story  on  Bailments  (9th  ed.),  Y.)  160,  5  Am.  Dec.  200.    It  has  been 

§§  489,  490,  511 ;  and  Chancellor  Kent,'  said  that  this   decision   is  the   "most 

2    Kent's    Com.    597.      It    is    said    in  extraordinary    version    of    the    prin- 

Hays    V.    Kennedy,    41    Pa.    St.    378,  ciple  on  which  a  common  carrier  is 

by  Lowrie,  C.  J.,  that  the  more  mod-  discharged     from    liability    that    the 

ern,    narrower    doctrine    was    intro-  books  contain,  and  upon  the  authority 

duced  by  Lord  Mansfield  in  Forward  of  later  cases,  may  confidently  be  pro- 

V.  Pittard,  1  T.  R.  27.  nounced  to  be  wrong."     Am.    Notes 

**  Smyrl    v.    Niolon,    2  Bailey     (S.  to    Coggs   v.    Bernard,   2   Ld.   Raym. 

Car.)  421;  Faulkner  v.  Wright,  Rice  909,  in  Smith's  Ld.  Cas.  (7th  ed.),  p. 

(S.  Car.)   107.  417. 


LIABILITIES    OF    CARRIERS. 


183 


of  wind,'*  and  the  freezing  of  canals  and  rivers.®^  Also  among 
accidents  which  have  been  held  to  be  acts  of  God,  within  the 
meaning  of  the  exception  from  the  carrier's  liability,  are  a  sudden 
flood  or  inundation  or  freshet,  at  least  if  of  unprecedented  oc- 
currence,^ a  sudden,  unusual  and  unexpected  earthquake,"  an 
unusually  heavy  snowstorm,  such  as  to  obstruct  trains,^  an  un- 
precedented wind,  strong  enough  to  blow  a  railroad  car  from 
the  track,*  a  hurricane  at  sea,  or  a  tornado.^  A  fire,  unless 
caused  by  lightning,  is  not  an  act  of  God,"  since  originated  by 
human  agency,  nor  a  boiler  explosion,^  nor  a  collision,^  nor  a 
landslide.^  A  steam  carrier  is  no  less  liable  for  loss  by  fire  be- 
cause fire  is  used  to  furnish  motive  power.^**  Nor  is  it  an  act  of 
God,  according  to  one  view,  when  an  engineer  becomes  suddenly 
insane  and  wrecks  a  train  by  running  it  at  a  high  speed." 


**  Amies  v.  Stevens,  1  Strange  131. 

''Crosby  v.  Fitch,  12  Conn.  410,  31 
Am.  Dec.  745;  Harris  v.  Rand,  4  N. 
H.  259.  17  Am.  Dec.  421;  Parsons 
V.  Hardy,  14  Wend.  (N.  Y.)  215,  28 
Am.  Dec.  521 ;  Bonman  v.  Teall,  23 
Wend.  (N.  Y.)  306,  35  Am.  Dec.  562. 

^Elliott  R.  R.  (2d  ed.),  §  1455; 
Smith  V.  Western  Railway  of  Ala- 
bama, 91  Ala.  455,  8  So.  754,  11  L. 
R.  A.  619,  24  Am.  St.  929;  Norris  v. 
Savannah  &c.  R.  Co.,  23  Fla.  182,  1 
So.  475,  11  Am.  St.  355;  Read  v. 
Spaulding,  30  N.  Y.  630,  86  Am.  Dec. 
426;  Nashville  &c.  R.  Co.  v.  David, 
6  Heisk.  (Tenn.)  261,  19  Am.  Rep. 
594. 

'  Slater  v.  S.  Car.  R.  Co.,  29  S.  Car. 
96,  6  S.  E.  936. 

^  Ballentine  v.  North  Missouri  R. 
Co.,  40  Mo.  491,  93  Am.  Dec.  315; 
Black  V.  Chicago,  B.  &  Q.  R.  Co., 
30  Nebr.  197,  46  N.  W.  428;  Fein- 
berg  V.  Delaware  &c.  R.  Co.,  52  N. 
J.  L.  451,  20  Atl.  33. 

*  Blvthe  V.  Denver  &  R.  G.  R.  Co., 
15  Colo.  333,  25  Pac.  702,  11  L.  R. 
A.  615.  22  Am.  St.  403. 

"  New  England  &  S.  Steamship  Co. 
V.  Paige,  108  Ga.  296,  33  S.  E.  969; 
Alabama  G.  S.  R.  Co.  v.  Quarles,  145 
Ala.  436,  40  So.  120,  5  L.  R.  A.  (N. 
S.)  867,  117  Am.  St.  54  (cyclone). 

'Hutchinson  Carriers  (3d  ed.), 
§  79;  Forward  v.  Pittard,  1  T. 
R.  27;  Miller  v.  Steam  Nav.  Co.,  10 


N.  Y.  431,  13  Barb.  (N.  Y.)  361.  Or 
unless  purely  accidental,  and  impos- 
sible to  prevent.  See,  Stiles  v.  Louis- 
ville &  U.  R.  Co.,  129  Ky.  175,  110  S. 
W.  820,  130  Am.  St.  429n ;  Lehman 
v.  Morgan's  La.  &  Tex.  Steamship 
Co.,  115  La.  1,  70  L.  R.  A.  562,  112 
Am.  St.  259,  5  Am.  &  Eng.  Ann. 
Cas.  818. 

^  Caldwell  v.  New  Jersey  Steamboat 
Co.,  56  Barb.  (N.  Y.)  425;  The  Mo- 
hawk, 8  Wall.  (U.  S.)  153,  19  L.  ed. 
406;  Bulkley  v.  Naumkeag  Steam 
Cotton  Co.,  24  How.  (U.  S.)  386,  1 
Sprague's  Dec.  (U.  S.)  477,  16  L.  ed. 
599. 

*  Mershon  v.  Hobensack,  2  Zab. 
(N.  J.)  372;  Plaisted  v.  Boston  & 
Kennebec  Steam  Navigation  Co.,  27 
Maine  133. 

'Gleeson  v.  Virginia  Midland  R. 
Co.,  140  U.  S.  435,  35  L.  ed.  458,  11 
Sup.  Ct.  859. 

^"  Caldwell  v.  New  Jersey  Steam- 
boat Co.,  56  Barb.  (N.  Y.)  425,  affd. 
47  N.  Y.  282;  Patton's  Admrs.  v. 
Magrath,  21  Dudley  (S.  Car.)  159, 
31  Am.  Dec.  552;  New  Jersey  S.  N. 
Co.  v.  Merchants'  Bank,  6  How.  (U. 
S.)  344,  12  L.  ed.  465;  The  Northern 
Belle,  9  Wall.  (U.  S.)  526,  19  L.  ed. 
746. 

"  Central  of  Georgia  R.  Co.  v. 
Hall,  124  Ga.  322,  52  S.  E.  679,  4  L. 
R.  A.  (N.  S.)  898,  110  Am.  St.  170. 


184  BAILMENTS. 

§  168.  Carrier's  exposure  to  danger — Deviation  from  route. 
— If  the  carrier  has  negligently  exposed  himself  to  the  danger, 
he  cannot  set  up  that  the  act  of  God  caused  the  loss.  Instances 
are  where  a  carrier  received  horses  for  transportation,  knowing 
that  a  line  over  which  they  would  have  to  pass  was  obstructed  by 
a  flood,^^  where  a  wagoner  tried  to  cross  a  stream  immediately 
after  a  rain,  and  his  wagon  miring  down  in  the  center  of  the 
stream,  the  sudden  rise  damaged  the  goods,^^  where  cars  were 
left  standing  in  a  place  liable  to  be  submerged,"  or  where  the  car- 
rier put  to  sea  in  an  unseaworthy  vessel.^"  Where  the  carrier 
deviates  from  the  usual  course  and  thus  encounters  danger,  he  is 
liable  for  loss  caused  by  an  act  of  God/®  But  a  carrier  of  live 
stock  who  in  case  of  necessity  deviates  from  the  direct  course 
is  not  simply  because  of  such  deviation  liable  for  injuries  to  the 
stock  caused  by  a  flood.^^  A  carrier  who  chooses  an  unsafe  route 
is  usually  liable,  however,  even  for  los?  caused  by  an  act  of  God." 

§  169.  Where  accident  would  not  have  haooened  save  for 
delay. — The  general  rule  seems  to  be  that  the  carrier  is  not 
liable  where,  except  for  delay  on  his  part,  the  goods  would  not 
have  been  exposed  to  accident,  unless  he  could  have  foreseen  such 
accident  as  a  probable  consequence  of  his  delay.^°     But  many 

"Adams  Express  'Co.  v.  Jackson,  Transit  Co.,  106  Wis.  394,  82  N.  W. 

92  Tenn.  326,  21  S.  W.  66f^  285.      See   Joseph    Thorley,   Ltd.,   v. 

"Campbell  v.  Morse,  1  Harper  (S.  Orchis  Steamship  Co.,  Ltd.,  76  L.  J. 

Car.)  468.  K.  B.   (N.  S.)  595.  96  L.  T.   (N.  S.) 

"Baltimore  &  O.  R.  Co.  v.  Keedy,  488,  23  T.  L.  R.  328.   12   Com.  Cas. 

75  Md.  320.  23  Atl.  643;  Grier  v.  St.  251.  2  Brit.  Rul.  Cas.  565  and  note. 

Louis    Merchants'    Bridge    Term.    R.  "  Empire      State      Cattle     Co.      v. 

Co.,    108    Mo.    App.    565,    84    S.   W.  Atchison  &c.  R.  Co.,  210  U.  S.  1,  52 

158.  L.    ed.   931,   28    Sup.    Ct.  607;    Min- 

"Bell  V.  Reed,  4  Binn.   (Pa.)   127,  nesota    &c.    Cattle    Co.    v.    Atchison 

5  Am.  Dec.  398.     See  Kish  v.  Taylor  &c.   R.   Co.,  210  U.   S.   1,  15   Am.   & 

(1911),  1  K.  B.  625,  80  L.  J.  K.  B.  Eng.  Ann.  Cas.  70,  and  see  note,  IS 

(N.  S.)  601,  103  L.  T.   (N.  S.)  785,  Am.    &   Eng.    Ann.    Cas.    Id    (citing 

27  T.  L.  R.  174.  16  Com.  Cas.  59.  11  many  cases  on  carrier's  liability  for 

App.   Mar.   L.   Cas.   544,  2  Brit.  Rul.  deviation). 

Cas.  575,  587  and  note.  "  See  cases  cited  in  notes  57,  58  in 

"Davis  V.   Garrett,    6    Bing.    716;  this  chapter,  §  159. 

Crosbv  V.  Fitch,  12  Conn.  410,  31  Am.  "  Rodgers  v.  Missouri  Pac.  R.  Co., 

Dec.    745;    Powers    v.    Davenport,   7  75   Kans.  222,   10  L.  R.  A.    (N.   S.) 

Blackf.  (Ind.)  497,  43  Am.  Dec.  100;  658,  121  Am.  St.  416,  12  Am.  &  Eng. 

Louisville  &  C.  Packet  Co.  v.  Rogers,  Ann,    Cas.    441    (a    very    exhaustive 

20  Ind.  App.  594,  49  N.  E.  970;  Chi-  case,    strongly    supporting    this    doc- 

cago    G.    W.    R.    Co.   v.    Dunlop,    71  trine) ;   Denny   v.    New   York    Cent. 

Kans.    67,    83    Pac.    34;    Seavey    v.  R.  Co.,  13  Gray  (Mass.)  481,  74  Am. 


LIABILITIES    OF    CARRIERS.  185 

States  follow  an  opposite  rule,  in  analogy  to  the  rule  in  regard  to 
deviation,  and  hold  the  carrier  liable,  where,  after  he  has  delayed 
the  shipment,  the  goods  are  damaged  by  an  act  of  God,  when,  if 
the  goods  had  been  carried  in  a  reasonable  time,  they  would  have 
escaped.-"  Interesting  cases  applying  these  rules  are  furnished 
by  an  unprecedented  flood  which  occurred  at  Kansas  City  in 
May  and  June,  1903.  In  several  jurisdictions  actions  were 
brought  against  carriers  for  damages  occasioned  by  the  flood  in- 
juring goods  in  cars,  to  which  flood  they  were  exposed  by  delay 
of  the  carrier.  The  courts  of  Minnesota,^^  Iowa,"  and  Ne- 
braska"^ held  the  carriers  liable  on  the  ground  that  the  goods 
would  not  have  been  destroyed  except  for  the  delay,  for  even 
though  the  flood  was  not  anticipated,  yet  the  delay  extended  the 
time  during  which  such  an  unprecedented  flood  might  occur.  In  a 
later  case,  the  Supreme  Court  of  Kansas  declined  to  follow  the 
reasoning  of  these  courts,  and  absolved  the  carrier  from  liability, 
holding  that  although  the  delay  was  negligent,  destruction  by  the 
flood  could  not  have  been  foreseen  as  a  probable  consequence.^* 
iWhen  the  carrier  has  met  with  an  accident  which  would  be  among 
the  legal  exceptions,  still,  if  the  goods  are  not  entirely  destroyed, 
he  must  use  a  reasonable  degree  of  care  to  preserve  and  save 

Dec.  645;  Morrison  v.  Davis,  20  Pa.  ^Bibb  Broom   Corn   Co.   v.   Atch- 

171,  57  Am.   Dec.  695;    Memphis   &  ison.  T.  &  S.  F.  R.  Co.,  94  Minn.  269, 

Charleston  R.  Co.  v.  Reeves,  10  Wall.  102  N.  W.  709,  69  L.  R.  A.  509,  110 

(U.   S.)    176,   19  L.  ed.  909.  Am.  St.  361,  3  Am.  &-Eng.  Ann.  Cas. 

^Alabama  &c.   R.   Co.  v.  Quarles,  450. 

145  Ala.  436,  8  Am.  &  Eng.  Ann.  Cas.  "  Green- Wheeler  Shoe  Co.  v.  Chi- 

308,  40  So.  120,  5  L.  R.  A.  (N.  S.)  867,  cago  &c.   R.  Co.,   130  Iowa  123,   106 

117  Am.  St.  54;  Wald  v.  Pittsburg,  C.  N.  W.  498,  5  L.  R.  A.   (N.  S.)  882, 

C.  &  St.  L.  R.  Co.,  162  111.  545,  44  N.  E.  8  Am.  &  Eng.  Ann.  Cas.  45. 

888,  35  L.  R.  A.  356,  53  Am.  St.  332;  ^Wabash    R.    Co.    v.    Sharpe,    Id 

Green-Wheeler  Shoe  &c.  Co.  v.  Chi-  Nebr.  424,  107  N.  W.  758,   124  Am. 

cago,  R.  I.  R.  Co.,  130  Iowa  123,  106  St.  823. 

N.  W.  498,  5  L.  R.  A.   (N.  S.)  882,  '*Rodgers  v.  Missouri  Pac.  R.  Co., 

8  Am.  &   Eng.   Ann.   Cas.  45;   Bibb  75  Kans.222,  10  L.  R.  A.  (N.  S.)  658, 

Broom  Corn  Co.  v.  Atchison,  T.  &  S.  121  Am.  St.  416,  12  Am.  &  Eng.  Ann. 

F.  R.  Co.,  94  Minn.  269,  102  N.  W.  Cas.    441.      But    in    a    later    Kansas 

709,  69  L.  R.  A.  509.  110  Am.  St.  361,  case,  it  was  held  that  a  carrier  which 

3  Am.  &  Eng.  Ann.  Cas.  450 ;  Wabash  wrongfully  refuses   to  deliver  goods 

R.  Co.  v.   Sharpe,  76  Nebr.  424,   107  upon  demand  made  by  the  consignee 

N.  W.  758,  124  Am.  St.  823;  Read  v.  promptly    after    notice    is    liable    for 

Spaulding,  30  N.  Y.  630,  86  Am.  Dec.  their  destruction  the  next  day  by  an 

426.     See  also.  Central  of  Ga.  R.  Co.  unprecedented      flood.        Henry      v. 

V.  Sigma  Lumber  Co.,   170  Ala.  627,  Atchison  &c.   R.   Co.,  83   Kans.    104, 

54  So.  205,  Ann.  Cas.  1912D.  965  and  109  Pac.  1005,  28  L.  R.  A.  (N.  S.) 

note.  1088. 


1 86  BAILMENTS. 

them,  and  if  he  does  not,  he  is  not  excused  by  the  character  of 
the  agency  which  caused  the  accident.-^  Nor  will  destruction  by 
the  act  of  God  excuse  the  carrier  after  he  has  wrongfully  re- 
fused to  deliver  to  the  consignee  who  presents  the  bill  of  lading.^® 

§  170.  Burden  of  proof. — The  burden  of  proof  is  on  the 
carrier  to  show  that  goods  lost  were  destroyed  by  the  act  of 
God,^^  and  in  some  jurisdictions  he  must  also  show  his  freedom 
from  negligence  contributing  to  the  loss.^^ 

§  171.  What  may  be  act  of  public  enemy. — If  goods  are 
captured  by  the  forces  of  a  country  at  war  with  the  carrier's 
country,  the  carrier  is  not  liable,  it  being  held  a  hardship  too 
great  to  make  him  pay  losses  when  he  has  no  recourse  against 
those  who  occasioned  them."''  Loss  caused  by  pirates  comes 
within  this  exception,^"  but  losses  occasioned  by  thieves  or  rob- 
bers,^^  strikers,  mobs,  or  rioters^-  are  held  not  to  be  caused  by 
acts  of  the  public  enemy,  either  on  the  ground  that  the  carrier  has 
recourse  against  the  persons  causing  the  loss,  or  that  if  the  carrier 
is  absolved  from  liability,  he  might  collude  with  thieves  to  defraud 

f' Nugent  V.   Smith,  L.   R.  1   C.  P.  "Elliott  R.  R.  (2d  ed.),  §  1457  and 

Div.  423 ;   Baltimore  &  O.   R.  Co.  v.  cases    cited ;    Southern    Exp.    Co.    v. 

Keedv,  75  Md.  320,  23  Atl.  643 ;  Grier  Newbv,  36  Ga.  635,  91  Am.  Dec.  783. 

V.   St.   Louis   Merchants'  &c.    R.   Co.,  ^Elliott    R.    R.    (2d    ed.),    §    1457 

108  Mo.  App.  565,  84  S.  W.  158;  Chi-  and  cases  cited;   Hand  v.  Bavnes,  4 

cago  &c.   R.   Co.  V.  Logan,  23  Okla.  Whart.    (Pa.)    204,   33   Am.   Dec.   54 

707,   105   Pac.   343,  29  L.   R.  A.    (N.  and   note;    McGraw  v.    Baltimore   & 

S.)   663;    Morrison  v.  Davis,  20  Pa.  O.   R.   Co.,   18  W.  Va.   361,  41   Am. 

St.  171,  57  Am.  Dec.  69Sn ;  Nashville  Rep.   696. 

&c.  R.  Co.  V.  David,  6  Heisk.  (Tenn.)  ^Russell  v.  Niemann,  17  C.  B.  (N. 

261,    19  Am.    Rep.    594;    Memphis   &  S.)     163;    Coggs    v.    Bernard,    2    Ld. 

Charleston  R.  Co.  v.  Reeves,  10  Wall.  Raym.  909;   Gage  v.  Tirrell,  9  Allen 

(U.S.)    176,  19  L.  ed.  909.    Where  a  (Mass.)   299;   Seligman  v.  Arniyo,  1 

carrier  tendered  to  a  connecting  car-  N.    Mex.   459;    Hall  v.    Pennsylvania 

rier  a  car  containing  goods,  and  such  R.    Co.,    14   Phila.    (Pa.)    414. 

carrier  refused  to  receive  it  because  ^^ Story  Bailments  (9th  ed.),  §  526; 

of  inability  to  handle  it,  and  the  car-  Pickering  v.  Barkley.   Style,   132. 

rier,  being  warned  of  danger  from  a  '''■  Coggs  v.   Bernard,  2   Ld.   Raym. 

flood,  took  the  car  to  the  safest  place  909 ;   Morse  v.  Slew.  1  Ven.  190. 

for   detention,    it  was  not   liable   for  ^=  Elliott   R.    R.    (2d    ed.),   §    1459; 

destruction  of  the  goods  bv  the  flood,  ]\Iissouri    Pac.    R.    Co.   v.    Nevill,   60 

which   amounted   to   an   act  of   God.  Ark.  375,  30  S.  W.  425,  28  L.  R.  A. 

Armstrong  v.  Illinois  Central  R.  Co.,  80,  46  Am.  St.  208;  Pittsburg,  C.  C. 

26  Okla.  352,  109  Pac.  216,  29  L.  R.  &  St.  L.  R.  Co.  v.  Chicago,  242  111. 

"A.  (N.  S.)  671  and  note.  178,  89  N.  E.  1022.  134  Am.  St.  316; 

*  Richmond  &  D.   R.   Co.   v.  Ben-  Hall  v.  Pennsylvania  R.  Co.,  14  Phila. 

son,  86  Ga.  203,  12  S.  E.  357,  22  Am.  (Pa.)  414. 

St.  446.  ' 


LIABILITIES    OF    CARRIERS.  187 

the  shipper.^^  If  rebellion  becomes  revolution,  and  those  in  arms 
against  the  public  authority  acquire  the  rights  of  belligerents, 
then  carriers  of  either  belligerent  may  invoke  the  public  enemy 
doctrine  to  release  them  from  liability  for  goods  captured  by 
forces  of  the  other.^'^  This  rule  was  applied  in  the  American 
Revolution  and  in  the  Civil  War.^^  It  is  not  necessary  that  war 
should  have  been  actually  declared,  if  hostilities  have  actually 
been  begun,  in  order  to  create  the  relation  of  public  enemies.^'^ 
The  carrier  who  by  negligence  or  deviation  exposes  goods  to  the 
public  enemy  is  liable.^^  If  hostilities  commence  between  the  car- 
rier's country  and  that  to  which  he  has  contracted  to  carry  the 
goods,  he  is  excused  from  the  performance  of  his  contract,^^  but 
must  use  reasonable  efforts  to  preserve  the  goods  for  the  owner,^* 
and,  if  the  restraint  be  only  temporary,  must  complete  the  con- 
tract after  its  removal.  If  the  goods  are  contraband  of  war,  con- 
signed to  a  country  at  war,  the  carrier  is  justified  in  refusing  to 
carry  them,  and  even  may  unload  them  in  order  to  carry  safely 
other  goods  which  he  has  taken  on  board.*" 

§  172.     What  is  meant  by  loss  caused  by  public  authority. 

— If  goods  are  taken  and  seized  under  the  police  powers  of  the 
state,  as  intoxicating  liquors,  the  sale  of  which  is  forbidden  by 
law,  the  carrier  is  not  liable;*^  likewise  if  they  are  taken  from 

**Coggs  V.   Bernard,  2  Ld.   Raym.  Black    (U.    S.)    635;   Montgomery  v. 

909.  United  States,  15  Wall.  (U.  S.)  395; 

^* Hutchinson     Carriers     (3d     ed.),  Mitchell   v.    United    States,  21   Wall. 

§  317;  Elliott  R.  R.  (2d  ed.),  §  1458.  (U.  S.)  350. 

"'Bland  V.  Adams  Exp.  Co.,  1  Duv.  ""  Hadley  v.   Clarke,   8  T.    R.   259; 

(Ky.)   232;  Southern  Express  Co.  v.  Bork  v.   Norton,  2   McLean   (U.  S.) 

Womack,     1     Heisk.     (Tenn.)     256;  422,  Fed.  Cas.  No.  1659. 

Prize   Cases,  2    Black    (U.    S.)    635;  *" Nobel's    Explosives    Co.    v.    Jen- 

Thorington    v.    Smith,   8   Wall.    (U.  kins,  2   Q.   B.    (1896)    326.  65  L.   J. 

S.)     1;    contra,    Dole    v.    Merchants'  Q.  B.  638;  The  Stvria,  101  Fed.  728, 

Mut.  &c.  Ins.  Co.,  51  Maine  465.  41  C.  C.  A.  639. 

*«  Prize    Cases,    2    Black     (U.    S.)  *^  Southern  Exp.  Co.  v.  Sotille,  134 

635;  Alexander's  Cotton,  2  Wall.  (U.  Ga.  40,  67  S.  E.  414,  28  L.  R.  A.  (N. 

S.)  404.  S.)  139;  Bliven  v.  Hudson  R.  R.  Co., 

*' Parker   v.   James,   4   Camp.    112;  35  Barb.   (N.  Y.)   188,  36  N.^  Y.  403; 

Southern  Express  Co.  v.  Womack,  1  Baltimore   &c.    R.    Co.    v.    O'Donnell, 

Heisk.  (Tenn.)  256;  Holladay  v.  Ken-  49  Ohio  St.  489,  32  N.  E.  476.  21  L. 

nard,    12   Wall.    (U.    S.)    254,   20   L.  R.  A.  117  and  notes,  34  Am.  St.  579; 

ed.   390;    United   States  Exp.    Co.   v.  American  Exp.  Co.  v.  Mullins,  212  U. 

Kountz,  8  Wall.   (U.  S.))  342,  19  L.  S.  311,  53  L.  ed.  525,  15  Am.  &  Eng. 

ed.  457.  Ann.  Cas.  536;  Wells  v.  Maine  Steam- 

^Griswold      V.      Waddington,      16  ship  Co.,  4  Qiff.   (U.  S.)  228. 
jDhns.   4N.  Y.)  438;  Prize  Cases.  2 


1 88  BAILMENTS. 

him  by  legal  process  against  the  owner.*-  In  both  cases,  how- 
ever, if  they  are  taken  without  proper  legal  process,  or  upon 
process  not  fair  upon  its  face,  the  carrier  may  still  be  liable." 

§  173.  Loss  caused  by  act  of  shipper. — If  expressly  or  by 
his  conduct,  the  shipper  conceals  or  misrepresents  the  nature  of 
the  goods,  so  that  the  carrier  does  not  give  to  them  the  care  which 
he  would  if  he  had  known  their  value,  the  carrier  may  be  relieved 
from  liability.**  This  may  arise  merely  from  an  omission  to  tell 
the  nature  of  the  goods,*^  or  from  improper  marking;*^  or  if  the 
goods  are  unskilfully  loaded  or  packed  by  the  shipper,  the  carrier 
is  not  liable  for  losses  thus  occasioned.*^  Where  the  custody  of 
the  goods  is  mixed,  both  the  shipper  and  the  carrier  having 
control,  the  carrier  is  not  liable  for  damage  caused  by  the  ship- 
per's failure  on  his  part  of  the  care  of  the  shipment.*^ 

§  174.  Loss  caused  by  inherent  nature  of  the  goods. — 
Among  losses  caused  by  the  inherent  nature  of  the  goods,  for 
which  the  carrier,  if  not  himself  at  fault,  is  not  liable,  may  be 
mentioned  the  natural  decay  of  fruits,  evaporation  of  liquids,  the 

*^  See  post,  §  244.  51  S.  E.  985,  2  L.  R.  A.  (N.  S.)  773n, 

^'See   post,  §  244  HO  Am.  St.  610;  Congar  v.  Chicago 

**  Hutchinson     Carriers     (3d    ed.),  &  N.  W.  R.  Co.,  24  Wis.  157,  1  Am. 

§§  328-333;  Elliott  R.  R.  (2d  ed.),  §  Rep.  164. 

1491;    Gibbon    v.    Pavnton,    4    Burr.  "''Elliott   R.   R.    (2d   ed.),   §    1492; 

2298;     Chesapeake     &c.     R.     Co.     v.  Goodman  v.   Oregon   R.  &c.   Co.,  22 

Hall,    136    Ky.   379,    124    S.   W.  372,  Ore.  14,  28  Pac.  894,  49  Am.  &  Eng. 

Ann.    Cas.    1912A,    364;    Nathan    v.  R.    Cas.    87;    Klauber    v.    American 

Woolverton,  134  N.  Y.  S.  469;  Bot-  Exp.  Co.,  21   Wis.  21,  91  Am.   Dec. 

turn  V.  Charleston  &c.  R.  Co.,  72  S.  452. 

Car.  375,  51  S.  E.  985,  2  L.  R.  A.  **  However,  where  the  carrier  con- 
(N.  S.)  773n,  110  Am.  St.  610,  5  tracted  to  carry  and  deliver  two  car- 
Am.  &  Eng.  Ann.  Cas.  118;  Schacht  loads  of  potatoes  in  extreme  cold 
V.  Illinois  Cent.  R.  Co.,  94  Tenn.  658,  weather,  and  the  shipper  was  to  pro- 
30  S.  W.  742,  28  L.  R.  A.  176.  vide  a  caretaker  to  build  fires  to  keep 
*°  Elliott  R.  R.  (2d  ed.),  §  1491;  them  from  freezing,  and  the  carrier 
Haves  v.  Wells,  23  Cal.  185,  83  Am.  separated  the  cars,  carrying  one 
Dec.  89;  Chicago  &c.  R  Co.  v.  ahead  on  the  tram,  leaving  the  other 
Thompson,  19  111.  577;  American  at  the  siding,  so  that  the  caretaker 
Exp.  Co.  V.  Perkins,  42  111.  458;  could  not  attend  to  both,  and  the  po- 
Chesapeake  &c.  R.  Co.  v.  Hall,  136  tatoes  in  the  car  left  behind  froze 
Ky.  379,  124  S.  W.  372;  Orange  and  became  worthless,  the  earner 
County  Bank  v.  Brown,  9  Wend.  (N.  was  liable,  even  though  the  potatoes 
Y.)  85  (money  in  trunk)  ;  Houston  did  not  freeze  until  after  delivery  to 
&  T.  C.  R.  Co.  v.  Burke,  55  Tex.  323.  a  connecting  carrier.  Whitnack  v. 
*«Lake  Shore  &c.  R.  Co.  v.  Hod-  Chicago,  B.  &  Q.  R.  Co.,  82  Nebr. 
app,  83  Pa.  St.  22;  Bottum  v.  464,  118  N.  W.  67,  130  Am.  St.  692, 
Charleston  &c.  R.  Co.,  72  S.  Car.  375,  19  L.  R.  A-  (N.  S.)  101  In. 


LIABILITIES    OF    CARRIERS.  1 89 

bursting  of  vessels  because  of  fermentation  of  their  contents, 
the  natural  death  of  animals,  and  damage  to  animals  caused  by 
their  viciousness  or  natural  propensities.  The  latter  may  include 
the  destruction  of  animals  by  each  other,  or  their  death  from 
fright,  or  starvation,  from  heat  or  cold,  or  because,  through 
viciousness  or  fright,  they  put  themselves  into  a  situation  where 
they  die  or  are  injured,  if  the  carrier  has  furnished  sufficient  ac- 
commodations.*'* The  rule  applies  to  carriers  by  w^ater  as  well  as 
land  carriers.^*  The  reason  for  this,  as  for  all  the  other  exceptions, 
is  obvious ;  the  carrier  could  not  prevent  such  loss  by  any  means  in 
his  power.  Where  the  carrier  could  have  prevented  loss,  he  is 
usually  liable,  either  on  the  ground  of  his  own  negligence,  the 
ground  that  he  exposed  the  goods  to  danger,  or  the  ground  that 
he  did  not  furnish  suitable  accommodations.  The  rule  as  to 
injuries  caused  by  the  propensities  of  animals  will  be  considered 
more  fully  under  the  chapter  on  Carriers  of  Live  Stock.^^ 

§  175.  Statutory  exceptions  to  carrier's  liability. — Excep- 
tions to  a  common  carrier's  liability  made  by  statute  have  the 
effect  of  the  legal  exceptions  of  the  common  law,  and  in  this 
country  the  most  conspicuous  example  of  these  is  the  federal 
statute  known  as  the  Harter  act,  to  the  effect  that  if  the  owner  of 
a  vessel  transporting  merchandise  to  or  from  any  port  shall 
exercise  due  diligence  to  make  the  said  vessel  in  all  respects  sea- 
worthy and  properly  manned,  equipped  and  supplied,  the  vessel, 
her  owner,  agent,  and  charterers  shall  not  be  held  responsible  for 
damage  or  loss  resulting  from  faults  or  errors  in  navigation  or  in 
the  management  of  the  vessel.^^ 

§  176.  Liability  for  delay. — The  law  makes  it  a  part  of 
the  carrier's  contract  to  carry  safely,  and  as  to  this  part  of  the 
contract  makes  him  an  insurer  of  its  performance.     It  also  makes 

'» Hutchinson    Carriers     (3d    ed.),  "  Greenshields   v.    Stevens    (1908), 

§  334;  Elliott  R.  R.  (2d  ed.).  §§  1474,  A.  C.  431,  13  Am.  &  Eng.  Ann.  Cas. 

1475,      1545-1557;      Greenshields      v.  245,  and  cases  cited  in  note. 

Stevens  (1908),  A.  C.  431,  13  Am.  &  "See  post.  §  260. 

Eng.   Ann.  Cas.  245;   Ohio  &   M.   R.  ''U.     S.     Revised     Statutes,     1901, 

Co.   v.   Dunbar,   20   111.   623,  71   Am.  §§  4281-4289.      For    a    comparatively 

Dec   291.     See  also,  Cleveland,  C.  C.  full  discussion  of  the  Harter  Act,  see 

&  St.   L.   R.   Co.  V.   Rudy,  173  Ind.  Hutchinson  Carriers  (2d  ed.),  §  345 

181,  89  N.  E.  951.  et  seq. 


190  BAILMENTS, 

it  a  part  of  the  implied  contract  entered  into  by  every  carrier  that 
the  goods  shall  be  delivered  within  a  reasonable  time,  but  as  to  this 
there  is  no  extraordinary  liability,  only  that  of  an  oidimry  bailee, 
and  the  carrier  is  bound  only  to  use  reasonable  care  to  deliver 
within  a  reasonable  time,  and  is  liable  only  for  negligence  in  fail- 
ing to  do  so.°^  If  because  of  unreasonable  delay  the  goods  have 
deteriorated,  the  market-price  has  fallen,  or  the  market  has 
failed  entirely,  the  carrier  is  liable  in  damages,  but  such  delay  is 
not  a  conversion  of  the  goods  unless  a  demand  has  been  made 
and  the  carrier  has  failed  to  surrender  them,^*  and  the  consignee 
cannot  refuse  to  receive  them  merely  because  of  unreasonable 
delay/°  What  is  a  reasonable  time  is  usually  a  question  of  fact, 
dependent  entirely  on  the  circumstances.^^ 

§  177.  Special  circumstances  may  increase  duty  not  to 
delay. — If  a  carrier  has  knowledge  of  special  circumstances, 
as  where  goods  are  ordered  for  a  special  purpose,  or  present  use  in 
a  given  way,  so  that  delay  will  defeat  the  purpose  of  the  shipment, 
or  cause  special  damages,  he  may  be  held  to  have  contracted  with 
such  in  view;^^  for  instance,  where  the  shipment  was  a  piston 
rod  necessary  for  the  operation  of  a  cotton  gin,''^  or  theatrical 

"=  Taylor  v.  Great  Northern  R.  Co.,  (N.  S.)  1107;  Chesapeake  &c.  R.  Co. 

L.  R.  1  C.  P.  385;  Cincinnati  R.  Co.  v.  Saulsbury,  126  Kv.  179,  103  S.  W. 

V.  Case.  122  Ind.  310,  23  N.  E.  797;  254,   12   L.   R.   A.    (N-    S.)    431   and 

Philadelphia  &c.   R.   Co.   v.   Lehman,  note. 

56  Md.  209;  Gates  v.  Chicago  B.  &  ^Elliott   R.   R.    (2d   ed.).   §    1483; 

Q.   R.   Co.,  42  Nebr.  379,  60  N.  W.  Hutchinson  Carriers  (3d  ed.).  §  652: 

583,  61  Am.  &  Eng.  R.  Cas.  218;  Den-  St.  Louis  &c.  R.  Co.  v.  Coolidge,  73 

man  v.  Chicago  B.  &  Q.  R.  Co.,  52  Ark.  112,  83  S.  W.  333.  67  L.  R.  A. 

Nebr.   140,  71  N.  W.  967;   Baltimore  555,  108  Am.  St.  21;  Michigan  &c.  R. 

&  O.   R.  Co.  V.  O'Donnell,  49  Ohio  Co.  v.  Day,  20  111.  375,  71  Am.  Dec. 

St.   489,  32  N.   E.  476,  21   L.   R.  A.  278.     A  carrier  of  perishable  freight 

117n,  34  Am.  St.  579;  Ruppel  v.  Alle-  like  potatoes,  in  hot  weather,  is  bound 

gheny  Valley  R.  Co.,  167  Pa.  St.  166,  to  deliver  immediately  to  a  succeeding 

31  Atl.  478,  46  Am.  St.  666.  carrier,  and  is  liable   for  rotting  of 

°*  Story  Bailments  (9th  ed.).  §  509;  the  potatoes  caused  by  failure  so  to 

Davis  V.  Garrett,  6  Bing.  716;  Ellis  deliver.    St.  Louis  &c.  R.  Co.  v.  Cool- 

V.    Turner,   8   T.    R.    531;    Southern  idge,  73  Ark.   112,  83  S.  W.  333,  67 

Exp.  Co.  V.  Hanaw,   134  Ga.  445,  67  L.  R.  A.  555,  108  Am.  St.  21. 

S.  E.  944,  137  Am.  St.  227;  Hackett  "Ft.   Smith  &  W.  R.  Co.  v.  Will- 

V.  Boston  C.  &  M.  R.  Co.,  35  N.  H.  iams  (Okla.),  121   Pac.  275;  Mills  v. 

390;  Scovill  v.  Griffith,  12  N.  Y.  509;  Southern  R.  Co.   (S.  Car.),  73  S.  E. 

Goldbowitz  V.  Metropolitan  Exp.  Co.,  772.      See    cases    cited    in    following 

91  N.  Y.  S.  318.  notes. 

"  Chicago  &c.  R.  Co.  v.  Pfeifer,  90  ***  American    Express    Co.    v.    Jen- 

Aik  524,  119  S.  W.  642,  22  L.  R.  A.  nings,  86  Miss.  329,  38  So.  374.  109 


LIABILITIES    OF    CARRIERS.  I9I 

scenery  to  be  used  for  a  particular  exhibition,^"  or  where  after 
cattle  feed  was  transported  to  the  destination,  the  carrier  was 
informed  that  the  owner  was  out  of  feed,  and  must  have  prompt 
delivery,  the  carrier  was  liable  in  special  damages  for  negligent 
delay.^"  The  notice  necessary  to  charge  the  carrier  with  special 
damages  may  be  constructive,  and  a  carrier  may  take  notice  from 
the  fact  that  a  furniture  manufacturing  company  causes  an  engine 
shaft  to  be  shipped  to  itself  that  it  is  needed  at  once,*'^  or  where  a 
threshing  machine  is  consigned  in  June  to  an  implement  dealer  in 
Kansas,  the  carrier  is  supposed  to  know  that  it  was  intended  for 
immediate  use,  and  is  specially  liable  for  delay  in  transporting 
until  the  close  of  the  threshing  season."^  Damages  from  mere 
negligent  delay  are  generally  treated  as  arising  ex  contractu,  and 
may  not  be  increased  by  bringing  an  action  ex  delicto.''^ 

§  178.  Excuses  for  delay. — An  accident  or  misfortune, 
though  not  inevitable  or  of  such  class  as  to  be  called  an  act  of 
God,  may  excuse  delay.  Among  these  are  a  heavy  snow,^*  the 
washout  of  a  bridge,®^  low  water  in  a  navigable  river,^"  the  freez- 
ing of  a  canal  or  river,^^  a  collision  caused  by  the  negligence  of 
another  carrier,*'^  the  negligence  of  another  railroad  over  which 
the  carrier  transports  goods,**^  an  unusual  and  unanticipated  press 
of  freight,'"  an  unusual  fire  which  destroyed  part  of  the  railroad 

Am.   St.  708;   Traywick  v.   Southern  Ballentine  v.  North  Missouri  R.  Co., 

R.  Co.,  71   S.  Car.  82,  SO  S.  E.  549,  48  Mo.  491,  93  Am.  Dec.  315. 

.  110  Am.  St.  563.  ^'Vicksburg   &c.    R.    Co.    v.    Rags- 

**  Weston  V.  Boston  &  M.  R.  Co.,  dale,  46  Miss.  458;  Burnham  v.  Ala- 

190  Mass.  298,   112  Am.   St.  330,  16  bama  &  V.  R.  Co.,  81   Miss.  46,  12 

N.  E.  1050,  4  L.  R.  A.  (N.  S.)  569n.  So.  912. 

""Bourland  v.  Choctaw  O.  &  G.  R.  ^Bennett  v.    Byram,  38   Miss.    17; 

Co.,  99  Tex.   407,  90   S.   W.   483,  3  Silver  v.  Hale,  2  Mo.  App.  557. 

L.  R.  A.   (N.  S.)   1111,  122  Am,  St.  ''^Philadelphia  &  Reading  R.  Co.  v. 

646.  Peale,    135    Fed.    606;    Bowman    v. 

*" Harper  Furniture  Co.  v.   South-  Teall,  2Z  Wend.  (N.  Y.)  306,  35  Am. 

ern  Exp.  Co.,  148  N.  Car.  87,  62  S.  E.  Dec.  562;  Beckwith  v.  Frisbie,  Z2  Vt. 

145,  30  L.  R.  A.   (N.  S.)  483n,  128  559. 

Am.  St.  588.  °« Conger  v.  Hudson  R.   R.   Co.,  6 

*^  Missouri    Pac.    R.    Co.    v.    Peru-  Duer.  (N.  Y.)  375. 

Van  Zandt  Implement  Co.,  TZ  Kans.  **  Taylor  v.  Great  Northern  R.  Co., 

295,  85  Pac.  408,  87  Pac.  80,  6  L.  R.  L.  R.  1  C.  P.  385 ;  Livingston  v.  New 

A.  (N.  S.)  1058,  117  Am.  St.  468.  York  Cent.  &c.  R.   Co.,  5  Hun   (N. 

**  American   Exp.   Co.   v.   Jennings,  Y.)  562. 

86  Miss.  329,  38  So.  374,  109  Am.  St.  ■"  Wibert  v.  New  York  &  E.  R.  Co., 

708.  12  N.  Y.  245;  Mauldin  v.  Seaboard 

"Palmer  v.   Atchison   T.   &   S.   F.  Air  Line  R.  Co.,  11  S.  Car.  9,  52  S. 

R.  Co.,   101   Cal.   187,  35   Pac.  630;  E.  677.    Not  if  the  carrier's  equip- 


192  BAILMENTS. 

track/^  and  an  embargo  upon  a  port.'^  The  misconduct  of  the 
carrier's  servants  is  no  excuse  for  delay/^  but  if  former  servants 
of  the  carrier  have  struck,  and  they  hinder  its  present  servants 
from  performing  the  contract  of  carriage,  the  carrier  is  not  Hable 
for  delay,''*  nor  is  it  ordinarily  liable  for  delay  caused  by  the 
acts  of  rioters/^ 

§  179.  Duty  to  delay  under  some  circumstances. — Under 
certain  circumstances  delay  may  be  a  duty,  for  the  carrier  is  not 
justified  in  exposing  the  goods  to  known  danger  in  order  to  carry 
them  more  quickly,  his  duty  to  carry  them  safely  being  higher 
chan  that  to  carry  within  a  reasonable  time.'^  If,  however,  there 
are  circumstances  existing  which  will  excuse  delay,  this  does  not 
necessarily  terminate  the  contract  of  carriage,  and  the  carrier  is 
under  an  obligation  to  carry  as  soon  as  the  circumstances  are 
removed,  and  may  be  liable  for  unreasonable  delay  after  this 
time.'^' 

ment    is    inadequate    to    handle    or-  R.   Co.  v.  Tisdale,  74  Tex.  8,   11   S. 

dinarily     to     be     expected     business.  W.  900,  4  L.  R.  A.  545. 
Yazoo  &c.  R.  Co.  v.  Blum,  88  Miss.         "  Bartlett   v.    Pittsburg    R.    Co.,  94 

180,  40  So.  748,  10  L.  R.  A.   (N.  S.)  Ind.  281;  Gulf  C.  &  S.  F.  R.  Co.  v. 

432n.  Levi,  76  Tex.  ZZ7,   13   S.  W.   191.  8 

"Michigan    Cent.    R.    Co.   v.   Bur-  L.  R.  A.  323,  18' Am.  St.  45. 
rows,  33  Mich.  6.  "Davis    v.    Garrett,    6    Bing.    716; 

"  See   cases   cited   under  last   note  Crosby  v.  Fitch,  12  Conn.  4l0,  31  Am. 

39.  this  chapter.  Dec.  745;   International  &  G.  N.  R. 

''-  Blackstock  v.  New  York  &  E.  R.  Co.  v.  Wentworth,  8  Tex.  Civ.  App. 

Co.,  20  N.  Y.  48,  75  Am.  Dec.  372;  5,  27  S.  W.  680. 
Weed  v.   Panama  R.  Co.,   17  N.   Y.        "Hadley  v.   Clarke,   8  T.   R.  259; 

362.  Lowe  v.  Moss,  12  111.  477;  Vicksburg. 

"Central    R.    &    Banking    Co.    v.  &   M.   R    Co.   v.   Ragsdale,  46  Miss. 

Georgia  Fruit  &c.   Exchange,  91   Ga.  458;   Burnham  v.   Alabama  &  V.   R. 

389.  17  S.  E.  904;   Bartlett  v.   Pitts-  Co.,  81  Miss.  46,  32  So.  912;  Bowman 

burg  R.  Co.,  94  Ind.  281;  Louisville  v.  Teall,  23  Wend.    (N.  Y.)   306,  35 

&  N.  R.  R.  Co.  V.  Bell,  3  Kv.  L.  393 ;  Am.  Dec.  56 ;  Baltimore  &  O.  R.  Co. 

Geismer  v.  Lake  Shore  &  M.  S.  R.  v.  O'Donnell,  49  Ohio  St.  489,  32  N. 

Co.,  102  N.  Y.  563,  17  N.  E.  828,  55  E.  476,  21  L  R.  A.  117n,  34  Am.  St. 

Am.  Rep.  837;  International  &  G.  N.  579. 


CHAPTER  XII. 


LIMITATION   OF   LIABILITY    BY   CONTRACT. 


!  180.  In  general.  §  193. 

181.  Limitation    of    liability    by 

notice.  194. 

182.  Essentials  of  tlie  contract. 

183.  What  is  a  special  contract.  195. 

184.  Contract  may  be   in  parol. 

185.  Notices   informing     of     car- 

rier's regulations.  1'96. 

186.  To  be  effectual  the  terms  of 

limitation  must  be  part  of         197. 
contract. 

187.  Receipt    must    be    delivered 

when  goods  accepted.  198. 

188.  Character  of  limitations. 

189.  Limitation  of  amount  of  lia- 

bility. 

190.  Effect    in    case    of   abandon- 

ment or  completion  of  con-         199. 
tract. 

191.  Limitation  of  time  in  which 

claim     for    loss    must    be         200. 
made. 

192.  When  limitation  does  not  ap- 

ply— Waiver.  201. 


Condition  precedent  and 
burden  of  proof. 

Effect  of  contract  limita- 
tions in  case  of  negligence. 

Authority  of  shipper's  or 
carrier's  agent  to  limit 
liability. 

Construction  of  contracts 
limiting  liability. 

Construction  of  exceptions 
found  in  bills  of  water 
carriers. 

Act  of  carrier  which  pre- 
vents taking  advantage  of 
contract  limitations — De- 
viation or  departure  from 
contract. 

When  connecting  carrier  ob- 
tains benefit  of  contract 
made  by  initial  carrier. 

What  law  governs  construc- 
tion of  contract  limiting 
carrier's  liability. 

Consideration  for  contract 
limiting  liability. 


§  180.  In  general. — The  contract  between  the  carrier  and 
.the  shipper,  in  so  far  as  it  has  been  heretofore  discussed,  is  mainly 
an  implied  one,  forced  on  the  carrier  by  law,  and  the  carrier's 
liability  as  set  out  previously  is  made  a  part  of  every  contract 
of  carriage  of  goods,  unless  the  parties  limit  that  liability  by 
special  contract.  In  fact,  almost  all  goods  shipped  to-day  are 
carried  upon  contracts  which  in  some  manner  limit  the  liability  of 
the  carrier,  and  lessen  the  strictness  of  the  common-law  rule.  It 
was  formerly  held  that  contracts  lessening  the  liability  of  the 
common  carrier  were  against  public  policy,  but  with  the  introduc- 
tion of  better  and  safer  methods  of  transportation,  and  the  large 
increase  in  the  amount  of  transportation,  and  with  the  reflection 
that  the  chipper  entering  into  a  contract  limiting  this  liability 

193 


Bailments — 13 


194 


BAILMENTS. 


may  take  advantage  by  obtaining  lower  rates  than  if  the  carrier 
were  held  to  the  common-law  liability,  the  most  of  the  courts  of 
this  country  now  recognize  the  right  of  a  common  carrier  to  limit 
liability  by  contract  to  some  extent.  Sometimes  the  carrier  con- 
tracts to  increase  his  liability,  as  for  instance  where  goods  to 
reach  their  destination  must  be  carried  over  several  lines,  and  the 
carrier  binds  himself  to  transport  the  goods  all  the  way,  and  to 
be  responsible  for  their  safety  until  they  reach  their  final  destina- 
tion. Usually  the  provisions  of  the  contract  limiting  liability  are 
contained  in  the  same  instrument,  which  serves  also  as  a  receipt 
for  the  goods  and  evidence  of  their  acceptance,  namely,  the  bill 
of  lading,  although  limitation  contracts  may  be  made  in  other 
ways,  as  by  notice,  by  printed  tickets,  or  checks,  or  by  parol.  In 
all  cases  the  essentials  of  a  contract,  mutual  assent  and  a  sufficient 
consideration,  must  be  present. 

§  181.  Limitation  of  liability  by  notice. — In  early  English 
cases  it  was  held  that  the  carrier  might  limit  liability  not  only  by 
express  contract,  but  also  by  notice  to  the  shipper,  even  by  a  gen- 
eral public  notice,  if  brought  to  the  shipper's  knowledge.  So  much 
confusion  arose  over  the  application  of  this  rule  that  the  Land 
Carriers  Act  was  enacted  in  1830,  and  the  Railway  and  Canal 
Traffic  Act  in  1854,  under  the  provisions  of  which  the  carrier  is 
allowed  to  limit  liability  by  special  contract,  or  as  to  certain  arti- 
cles by  special  notice  even  against  its  own  negligence.^  In  the  ear- 
liest American  cases  it  was  held,  in  direct  opposition  to  the  Eng- 
lish cases,  that  by  the  common  law  the  carriers  did  not  have  the 
right  to  limit  liability  by  public  notice,  and  for  reasons  of  public 
policy  they  should  not  have  such  right,^  and  a  little  later  the  New 
York  Supreme  Court  decided  that  the  carrier  could  not  limit  his 
liability  by  express  contract.^  Shortly  afterward  the  United 
States  Supreme  Court  decided  that  a  common  carrier  may,  at  least 
by  special  contract,  restrict  his  liability,*  and  the  New  York 

*  Elliott   R.    R.    (2d   ed.),    §  1495;    v.  Goodwin,  19  Wend.   (N.  Y.)  251, 
Hutchinson  Carriers  (3d  ed.),§§390-    32  Am.  Dec.  470. 
399.  "Gould  V.  Hill,  2  Hill  (N,  Y.)  623. 

^HoUister    v.    Nowlen,    19    Wend.        *New   Jersey    Steam    Nav.   Co.   v, 
(N.  Y.)  234,  32  Am.  Dec  455;  Cole     Merchants'   Bank,  6   How.    (U.   S.) 

344,  12  L.  ed.  465. 


LIMITATION    OF    LIABILITY    BY    CONTRACT.  1 95 

Supreme  Court  then  followed  this  ruling.''  Now  in  almost  every 
state  the  carrier  may,  if  no  statute  prohibits,  make  an  express  or 
special  contract  with  its  employer,  by  which  the  latter  releases  a 
portion  of  the  cari-ier's  common-law  liability  as  insurer  of  the 
goods.® 

§  182.  Essentials  of  the  contract. — To  be  effective,  the 
contract  must  be  special  and  express,  in  clear  tei*ms,  and  exemp- 
tion from  liability  cannot  be  a  matter  of  inference  from  general 
or  ambiguous  terms/  There  must  have  been  a  mutual  assent 
to  its  terms,  and  it  is  generally  held  that  the  carrier  must  show, 
or  it  must  appear,  that  it  stood  willing  to  carry  the  goods  upon 
the  terms  of  common-law  liability,  and  that  the  shipper  had  a 
choice  between  shipping  on  these  terms,  or  under  the  terms  of 
the  special  contract.^  It  has  been  held  that  it  need  not  show 
that  an  offer  w^as  made  to  carry  the  goods  as  insurer,  but  that 
it  would  have  carried  as  such  if  the  shipper  had  demanded.^ 
If  it  would  have  been  useless  to  have  demanded  that  the 
goods  be  so  carried,  then  the  shipper  would  be  under  no 
duty  so  to  demand,  and  though  he  shipped  goods  under  a  contract 
of  limited  liability,  he  is  held  not  to  have  consented  thereto.^"* 

''Dorr  V.  New  Jersey  Steam  Nav.  A.    518;    Nashville    &c.    R.    Co.    v. 

Co.,  11  N.  Y.  485,  62  Am.  Dec.  125  Stone,  112  Tenn.  348,  79  S.  W.  1031, 

and  note.  105    Am.    St.   955.      But   the   United 

*  See  cases   cited   in   Elliott   R.   R.  States  Supreme  Court  has  held  that 

(2d    ed.),    §    1500;    Hutchinson    Car-  if  the  stipulation  is  just  and  reason- 

riers    (3d  ed.),   §  401,  and  see  notes  able,  there  is  no  necessity  for  alter- 

reviewing  the  authorities  in  2)2  Am.  native  choice,  or  independent  consid- 

Dec.  497,  82  Am.  Dec.  379,  5  Am.  St.  eration.     Arthur  v.  Texas  &  Pac.  R. 

725,  3  L.  R.  A.  343,  13  L.  R.  A.  518,  Co.,  204  U.  S.  505,  51  L.  ed.  590,  27 

3  Am.  &  Eng.  R.  Cas.  272,  7  Lewis  Sup.  Ct.  338,  revg.   139  Fed.  127,  71 

Am.    Rep.    &    Corp.    282,    11    Lewis  C.  C.  A.  391.    And  see  Cau  v.  Texas 

Am.  Rep.   &  Corp.  647,  88  Am.   St.  &  P.  R.  Co.,  194  U.  S.  427,  48  L.  ed. 

n  et  seq.  1053,  24  Sup.  Ct.  663. 

'  Saunders  v.  Southern  R.  Co.,  128  *  St.  Louis  &  S.  F.  R.  Co.  v.  Pearce, 
Fed.  15,  62  C.  C.  A.  523;  Westcott  v.  82  Ark.  353,  101  S.  W.  760,  118  Am. 
Fargo,  61  N.  Y.  542 ;  Nicholas  v.  St.  75 ;  Louisville  &c.  R.  Co.  v.  Man- 
Railroad  Co.,  89  N.  Y.  370.  chester    Mills,   88    Tenn.    653,    14   S. 

^  Little  Rock  &c.  R.  Co.  V.  Cravens,  W.    314;    Nashville    &c.    R.    Co.    v. 

57  Ark.  112,  20  S.  W.  803,  18  L.  R.  A.  Stone,  112  Tenn.  348,  79  S.  W.  1031 ; 

527,   38    Am.    St.    230;    Cleveland    C.  Deming   v.    Merchants'    Cotton-Press 

C.  &  St.  L.  R.  Co.  V.  Hollowell,  172  Co.,  90  Tenn.  306,   17   S.   W.  89,   13 

Ind.    466,   88   N.    E.    680;    Louisville  L.    R.   A.   518.     See   also,   Cleveland 

&c.  R.  Co.  V.  Gilbert,  88  Tenn.  430,  C.  C.  &  St.  L.  R.  Co.  v.  Hollowell, 

12  S.  W.  1018,  7  L.  R.  A.  162 ;  Dem-  172  Ind.  466,  470,  88  N.  E.  680. 

ing  V.   Merchants'  Cotton-Press  Co.,  "Little  Rock  &  Ft.   S.  R.   Co.  v. 

90  Tenn.  306,  17  S.  W.  89,  13  L.  R.  Cravens,    57  Ark.  112,  20  S.  W.  803, 


196  BAILMENTS. 

For  the  law  imposes  upon  the  carrier  the  duty  to  carry  all  goods 
of  the  kind  which  he  holds  himself  out  as  carrying  as  an  insurer 
of  their  safety,  and  the  owner  of  goods  has  a  right  to  demand 
that  his  goods  shall  be  carried  under  the  insurer's  liability.  In 
Kansas,"  lowa^^  and  Texas^®  contracts  limiting  the  common  car- 
rier's liability  are  prohibited  by  statute,  in  Nebraska"  and  Ken- 
tucky^^  by  the  state  constitutions. 

§  183.  What  is  a  special  contract. — The  contract  must  be 
express  and  mere  notice  will  not  create  an  express  contract.^''  The 
knowledge  of  the  contents  of  a  public  notice  was  held  in  early 
English  cases  to  constitute  a  contract,  since  with  knowledge  of  the 
terms  of  a  carrier,  if  one  does  business  with  him,  he  is  held 
to  have  contracted  with  reference  to  such  terms.  This  has  been 
said  to  be  merely  evidence  of  an  implied  contract.^^  If  there  is 
express  assent  to  a  notice  there  may  be  an  express  contract,  and 
when  a  shipper  takes  a  bill  of  lading  containing  the  notice  from 
the  carrier  he  is  held  to  have  assented  to  its  terms,  thus  making 
a  special  or  express  contract.^^  Under  the  English  Land  Carriers 
Act,  when  the  carrier  hands  to  the  employer  a  printed  notice  of 
terms,  or  ticket  which  he  receives,  he  is  held  bound  by  its  terms  as 
an  express  contract.^**  Since  in  America  it  is  the  custom  to  give  to 
the  shipper  a  receipt  or  bill  of  lading  containing  the  terms  of  the 

38   Am.    St.   230,    18  L.   R.   A.   527;  "' Southern   Exp.   Co.   v.   Fox,   131 

Cleveland  C  C.  &  St.  L.   R.  Co.  v.  Ky.  257,   115   S.   W.   184,   117   S.   W. 

Hollowell,    172    Ind.   466,   88   N.    E.  270,  133  Am.  St.  241;   Cincinnati  N. 

680  O.  &  T.   P.  R.  R.  Co.  v.   Steele,  140 

"St.  Louis  &  S.  F.  R.  Co.  V.  Sher-  Ky.  383,  131  S.  W.  22,  140  Am.  St. 

lock,  59  Kans.  23,  51  Pac.  899  (ex-  388. 

cept    with    permission    of    board    of  "Georgia  R.   Co.  v.  Gann,  68  Ga. 

railroad  commissioners).  350;    Central    of    Georgia   R.    Co.    v. 

^^lowa  Code  (1897),  §  2074;  Lucas  Hall,  124  Ga.  322,  52  S.  E.  679,  4  L. 

V.  Burlington  C  R.  &  N.  R.  Co.,  112  R.  A.  (N.  S.)  898;  Williams  v.  Cen- 

lowa  594,  84  N.  W.  615.  tral   R.   Co.,  93   App.   Div.    (N.  Y.) 

"Galveston  H.  &  S.  A.  R.  Co.  v.  582,    88    N.    Y.    S.    434;    Brown    v. 

Ball,    80   Tex.    602,    16    S.    W.    441.  Adams  Exp.  Co.,  15  W.  Va.  812. 

This  statute  does  not  apply  to  inter-  "Crouch  v.   London  &  N.   W.   R. 

state  shipments.    Missouri  Pac.  R.  Co.  Co.,  2  C.  &  R.  789. 

V    Sherwood,  84  Tex.  125,  19  S.  W.  "Bernstein  v.   Weir,  40  Misc.    (N. 

455,  17  L.  R.  A.  643.  Y.)  635,  83  N.  Y.  S.  48.                , 

"Missouri   Pac.  R.  Co.  v.  Vande-  "Palmer   v.    The   Grand   Junction 

venter,  26  Nebr.  222,  41  N.  W.  998,  3  R.   Co..  4  M.  &  W.  748;   Austin  v. 

L  R.  A.  129 ;  2,7  Am.  &  Eng.  R.  Cas.  The  Manchester  &c.  R.  Co.,  10  C.  B. 

651;    Wabash   R.   Co.   v.    Sharpe,   76  454. 
Nebr.  424,  107  N.  W.  758,  124  Am.  St. 
823. 


LIMITATION    OF    LIABILITY    BY    CONTRACT.  IQ" 

carrier  as  to  his  liability,  when  goods  are  delivered  to  land  car- 
riers, it  is  held  that  the  shipper's  taking  of  such  a  receipt  signifies 
his  assent  to  the  contract  therein  expressed,  whether  or  not  it  has 
been  read  to  him  or  explained,  or  his  attention  called  thereto,  or 
he  understood  it,  or  was  aware  of  its  conditions,  or  expressly  as- 
sented to  them,  if  no  fraud  is  practiced  by  the  carrier,  and  oppor- 
tunity is  given  the  shipper  to  know  the  contents.-"  So  when 
under  such  circumstances  the  shipper  accepts  a  bill  of  lading,  the 
presumption  that  he  assents  to  it  is  held  to  be  conclusive."^  It  is 
said  that  every  man  of  reasonable  intelligence  nowadays  knows 
that  no  carrier  now  undertakes  to  carry  under  the  common-law 
liability.  In  Illinois  and  Georgia,  however,  it  is  held  that  the 
mere  acceptance  by  the  owner  of  a  receipt  does  not  constitute  an 
assent  to  a  limitation  of  the  carrier's  liability  by  terms  therein 
contained,  but  the  carrier  must  show  by  outside  evidence  that 
there  was  an  actual  acceptance  on  the  part  of  the  shipper.^- 

§  184.  Contract  may  be  in  parol. — A  parol  contract  limit- 
ing liability  may  be  shown,  and  if  established  will  be  held  as  valid 
as  a  written  one,  the  only  difference  being  in  the  kind  of  evidence 
and  the  ease  of  proof.^^     As  said  in  a  previous  section,  all  prior 

'"Louisville  &c.   R.   Co.   v.   Meyer,  ville     &c.     R.     Co.     v.     Stone,     112 

78  Ala.  597;  St.  Louis  &  S.  F.  R.  Co.  Tenn.  348,  79  S.  W.  1031,  105  Am.  St. 

V.    Pearce,   82   Ark.    353,    101    S.    W.  955 ;  Cau  v.  Texas  &  P.  R.  Co.,   194 

760,  118  Am.   St.  75;  Atlantic  Coast  U.  S.  427,  48  L.  cd.  1053,  24  Sup.  Ct. 

Line   R.  Co.  v.   Dexter,  50  Fla.    180,  663;    Davis    v.    Central    Vermont    R. 

39  So.  634,  111  Am.  St.  116;  Patrick  Co.,  66  Vt.  290,  29  Atl.  313,  44  Am. 

V.  Missouri  R.  Co.,  5  Ind.  Ter.  742,  St.  852;   Boorman  v.  American  Exp. 

88  S.  W.  330,  modified  144  Fed.  632,  Co.,  21  Wis.  154.     Shipper  cannot  set 

75  C.   C.  A.  434;    Stewart  v.  Cleve-  up    hurried    execution,    lack    of    due 

land  C.  C.  &   St.  L.  R.   Co.,  21   Ind.  care    in    execution    or    ignorance    of 

App.  218,  52  N.   E.  89;   Mulligan  v.  provisions.     Nashville  &c.   R.   Co.  v. 

Illinois  Cent.  R.  Co.,  36  Iowa  181,  14  Stone,  112  Tenn.  348,  79  S.  \V.  1031, 

Am.    Rep.    514;    Kallnan    v.    United  105  Am.  St.  955. 

States   Exp.    Co.,   3   Kans.   205;    Cox  '^Belger  v.  Dinsmore,  51  N.  Y.  166, 

V.  Vermont  Cent.  R.  Co.,   170  Mass.  10  Am.  Rep.  575;  Kirkland  v.  Dins- 

129,  49  N.  E.  97;  Smith  v.  American  more,  62  N.  Y.  171,  20  Am.  Rep.  475; 

Exp.   Co.,   108  Mich.  572,  66  N.  W.  Cau  v.  Texas  &  P.  R.  Co.,  194  U.  S. 

479;    Patterson    v.    Kansas    City  &c.  427,  48  L.  ed.  1053,  24  Sup.  Ct.  663. 

R.  Co.,  56  Mo.  App.  657;   Merrill  v.  ^Southern  Express  Co.  v.  Hanaw, 

American   Exp.   Co.,   62   N.    H.   514;  134  Ga.  445,  67   S.   E.  944.   137  Am. 

Belger  V.  Dinsmore,  51  N.  Y.  166,  10  St.     227;     Adams     Express     Co.     v. 

Am.  Rep.  575,  Kirkland  v.  Dinsmore,  Haynes,  42  111.  89;  Chicago  &c.  R.  Co. 

62  N.  Y.  171,  20  Am.  Rep.  475;  Farn-  v.  Calumet  Stock  Farm.  194  111.  9,  61 

ham  V.   Camden   R.   Co.,   55    Pa.    St.  N.  E.  1095,  88  Am.  St.  68. 

53;   Swindler  v.   Milliard,  2   Rich.  L.  "^  Missouri   &c.    R.    Co.   v.    Patrick, 

(S.  Car.)  286,  45  Am.  Dec.  1Z2;  Nash-  144  Fed.  632,  75  C  C  A.  434;  Louis- 


198  BAILMENTS. 

oral  agreements  are  considered  to  have  been  merged  in  the  written 
bill  of  lading  if  such  is  accepted,-*  but  it  may  be  shown  that  the 
written  contract  has  been  modified  by  a  subsequent  parol  con- 
tract.^^  The  contract  need  not  be  signed  by  both  parties;  if  the 
carrier  signs,  it  is  conclusive  evidence  of  his  assent  to  the  terms, 
and  if  the  shipper  accepts,  his  assent  is  as  conclusive  as  if  he  had 
signed.^®  But  in  certain  states  the  statute  requires  such  con- 
tracts to  be  in  writing  and  signed  by  both  parties,  and  these  stat- 
utes are  binding.^'^ 

§  185.     Notices     informing     of     carrier's     regulations. — 

Though  the  carrier  may  not  limit  his  strict  liability  as  an  insurer 
by  public  notice,  nor  private  notice  unless  assent  of  the  ship- 
per is  shown,  yet  he  may  by  notice  inform  the  public  that  he  car- 
ries only  a  certain  class  of  goods,  or  only  over  his  own  route, 
or  that  he  will  carry  articles  only  under  a  certain  value,  unless 
the  shipper  complies  with  certain  conditions,  and  if  he  can  show 
that  the  employer  has  knowledge  of  this  notice,  then  he  is  not 
liable  beyond  its  terms. "^  The  reason  for  this  rule  would  seem 
to  be  that  he  has  not  held  himself  out  to  be  a  carrier  beyond  the 
extent  limited  by  public  notice,  and  this  notice  has  the  same 
effect  as  the  knowledge  of  the  reasonable  rules  and  regulations 
of  the  carrier  upon  the  one  who  does  business  with  him. 

§  186.  To  be  effectual  the  terms  of  limitation  must  be  a 
part  of  the  contract. — The  mere  acceptance  of  the  carrier's 
receipt  will  not  bind  the  shipper  to  the  limitations  of  liability 
contained  therein  unless  the  terms  of  limitation  are  written  or 
printed  upon  it  as  a  part  of  the  contract  entered  into,  and  in  such 
a  manner  that  they  cannot  reasonably  be  overlooked.^^     So  it  has 

ville  &c.  R.  Co.  V.  Nicolai,  4  Ind.  App.  Am.  Dec.  222;  Orange  County  Bank 

119,  30  N.   E.  424,  51  Am.   St.  206;  v.    Brown,   9   Wend.    (N.    Y.)    115; 

American    Transp.    Co.    v.    Moore,   5  Farmers'     &     Mechanics'     Bank     v. 

Mich.  368;  Gould  v.  Hill,  2  Hill  (N.  Champlain   Transp.   Co.,  22  Vt.    186, 

Y.)  623.  56  Am.  Dec.  68. 

^See  cases  cited  under  §   146.  ^Hutchinson     Carriers     (3d    ed.), 

"See  cases  cited  under  §   146.  §  415;  Elliott  R.  R.  (2d  ed.),  §§  1502, 

°*  See  cases  cited  under  note  20.  1502a.     It  is  held  that  where  a  ship- 

"  Feige  v.   Mich.   Cent.   R.   Co.,  62  per  fills  out  a  printed  blank  furnished 

Mich.   1,  28  N.  W.  685.  by   a   carrier,   he    makes    it    his   own 

•'2  Greenleaf  Ev.,  §  215;  Moses  v.  contract  and  is  bound  by  clauses  lim- 

Boston  Si  M.  R.  Co.,  24  N.  H.  71,  55  iting  liability  contained  therein.    Per- 


LIMITATION    OF    LIABILITY    BY    CONTRACT.  1 99 

been  held  that  if  there  are  terms  of  limitation  upon  the  back  of  the 
receipt  there  is  no  presumption  that  the  party  accepting  the 
receipt  knew  of  them,^®  and  even  that  such  a  presumption  does 
not  arise  when  such  terms  printed  upon  the  back  are  referred  to 
upon  the  face.^^  So  where  a  limiting  clause  was  stamped  upon 
the  receipt  in  red  ink,  in  one  corner  at  right  angles  to  the  text," 
or  where  a  revenue  stamp  was  fixed  over  a  limitation  clause  in 
printing,^^  it  was  held  that  there  was  no  presumption  that  the 
shipper  assented  to  such  terms.  And  if  conditions  tending  to 
limit  liability  are  written  or  printed  upon  the  receipt,  but  not  as 
a  part  of  the  contract,  they  are  considered  only  notices,  not  bind- 
ing upon  the  shipper  unless  assent  is  shown. ^*  It  has  been  held 
that  where  an  express  company  delivered  to  a  passenger  in  a  rail- 
road car,  when  the  light  was  so  dim  that  he  could  not  read  it,  a 
baggage  check  which  contained  limitations  upon  liability  printed 
in  fine  type,  the  carrier  could  not  set  up  such  limitations  as  a 
defense,  since  the  carrier  and  the  passenger  were  not  upon  terms 
of  equality  in  the  transaction,  and  the  latter  could  not  assent  to 
what  he  did  not  know.^°  It  has  been  held,  however,  that  if  a  re- 
ceipt is  given  to  a  person  similarly  situated,  but  under  conditions 
such  that  he  can  easily  read  it,  and  he  neglects  to  do  so,  he  is 
bound,  nevertheless,  by  its  contents.^^ 

§  187.  Receipt  must  be  delivered  when  goods  accepted. — 
To  make  the  conditions  of  the  receipt  effectual  in  limiting  liabil- 
ity it  must  usually  be  delivered  to  the  shipper  when  the  goods 
are  accepted,  for  by  accepting  the  goods  without  delivering  such 
receipt  the  carrier  has  accepted  them  under  the  common-law 

rin  V.  United  States  Exp.  Co.,  78  N.  em  R.  Corp.,  14  Blatch.   (U.  S.)  9. 

J.  L.  515,  74  Atl.  462,  28  L.  R.  A.  Fed.  Gas.  No.  689. 

(N.  S.)  645  and  note.  ''New  York  N.  H.  &  H.  R.  Co.  v. 

""Baltimore  &  O.  R.  Co.  v.  Doyle,  Sayles,  87  Fed.  444,  32  C.  C.  A.  485. 

142  Fed.  669,  74  C.  C.  A.  245 ;  Mer-  "^  Perry  v.  Thompson.  98  Mass.  249. 

chants' Despatch  Transp.  Co.  V.  Furth-  '*  Hutchinson     Carriers     (3d     ed.), 

mann.   149  111.   66,  47   111.   App.   561,  §  415;  Central  of  Georgia  R.  Co.  v. 

36  N.  E.  624,  41  Am.  St.  265 ;  Mich-  Hall,  124  Ga.  322,  52  S.  E.  679,  4  L. 

igan  Cent.  R.  Co.  v.  Mineral  Springs  R.  A.   (N.  S.)  898,  110  Am.  St.  170. 

Mfg.  Co..   16  Wall.    (U.  S.)   318,  21  =«  Blossom  v.  Dodd,  43  N.  Y.  264. 

L.  ed.  297.  3  Am.  Rep.  701 ;   Madan  v.  Sherard. 

^  Michigan  Central  R.  Co.  v.  Min-  1Z  N.  Y.  329,  29  Am.  Rep.  153. 

eral  Springs  Mfg.  Co.,  16  Wall.   (U.  ^  Madan  v.  Sherard,  1Z  N.  Y.  329. 

S.)  318,  21  L.  ed.  297;  Ayres  v.  West-  29  Am.  Rep.  153;  cases  cited  in  note 

20. 


200  BAILMENTS. 

liability.^^  It  might  be  shown  in  such  instance,  however,  that  the 
shipper  ratified  the  receipt  on  receiving  it,  or  that  the  usual  course 
of  business  between  the  parties  was  such  that  the  carrier  was 
accustomed  to  receive  goods,  and  issue  a  receipt  later.^^  If  there 
is  no  such  custom  of  deahng  and  the  carrier  unintentionally, 
failed  to  give  a  receipt,  and  there  was  no  consent  by  the  shipper 
to  receive  a  receipt  in  future,  the  carrier  is  bound  under  the  com- 
mon law.^^  Where  goods  are  accepted  and  the  carrying  begun 
under  an  oral  agreement,  it  has  been  held  that  this  oral  agreement 
is  not  merged  in  a  bill  of  lading  afterward  delivered  to  the 
shipper.^** 

§  188.  Character  of  limitations. — If  the  contract  is  fair 
and  reasonable  and  based  upon  a  sufficient  consideration,  it  seems 
that  the  common  carrier  of  goods  may  by  express  contract  relieve 
himself  from  liability  of  any  character,  except  from  the  conse- 
quences of  fraud  or  felony  by  his  servants  or  the  negligence  of 
himself  and  his  sei-vants.*^  Among  examples  of  the  manner  in 
which  the  carrier  may  relieve  himself  by  express  contract  from 
liability  as  an  insurer  are  the  following:  The  carrier  of  live 
stock  may  be  exempted  from  liability  for  injuries  to  the  stock 
not  connected  with  the  running  and  management  of  the  train, 
but  rather  connected  with  the  care  of  the  stock,  such  as  injuiy 
in  loading  and  unloading,  from  placing  too  many  in  one  compart- 
ment, from  suffocation,  overheating,  weakness,  escape  and  similar 
causes.*^    A  carrier  may  be  exempted  from  liability  for  loss  by 

®^ Louisville  &c.   R.    Co.    v.    Meyer,  §  146.  Merchants'  Despatch  Transp. 

78    Ala.    597;    Merchants'    Despatch  Co.  v.  Furthmann,  149  111.  66,  47  111. 

Transp.    Co.    v.    Cornforth,    3    Colo.  App.  561,  36  N.   E.  624,  41  Am.   St. 

280,  25  Am.  Rep.  757;  Michigan  Cent.  265;  Missouri  Pac.  R.  Co.  v.  Beeson, 

R.  Co.  V.  Boyd,  91  111.  268 ;  St.  Louis  30  Kans.  298,  2  Pac.  496 ;  St.  Louis  & 

&  S.  F.  R.  Co.  V.  Clark,  48  Kans.  321,  S.  F.  R.  Co.  v.  Clark,  48  Kans.  321, 

29  Pac.  312;  Blossom  v.  Griffin.  13  N.  29   Pac.   312;    Guillaume   v.   General 

Y.  569,  61  Am.  Dec.   75 ;   Gaines  v.  Transatlantic  Co.,  100  N.  Y.  491,  3  N. 

Union  &  Ins.  Transp.  Co.,  28  Ohio  E.  489. 

St.  418.  *^  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 

•*  Rubens  v.  Ludgate  Hill  Steamship  Coolidge,  1?>  Ark.  112,  83  S.  W.  2>ZX 

Co.,  65  Hun   (N.  Y.)  625,  48  N.  Y.  61  L.  R.  A.  555,  108  Am.  St.  21;  St. 

St.  1Z2,  20  N.  Y.  S.  481,  affd.  143  N.  Louis  &  S.  F.  R.  Co.  v.   Pearce,  82 

Y.  629,  Zl  N.  E.  825;  Shelton  v.  Mer-  Ark.  353,  101  S.  W.  760,  118  Am.  St. 

chants'  Dispatch  Transp.  Co.,  59  N.  75;  Nashville  &c.  R.  Co.  v.  Stone  & 

Y.  258.  Haslett,  112  Tenn.  348,  79  S.  W.  1031, 

•»Gott  V.  Dinsmore,  111  Mass.  45.  105  Am.  St.  955.     See  post,  §  194. 

"See   cases    cited   in   note   under  *^East  Tennessee  R.  Co.  v.  John- 


LIMITATION    OF    LIABILITY    BY    CONTRACT. 


201 


fire/^  by  strikers,  mobs  or  rioters,"  by  thieves  or  rcbbers,''^  for 
the  loss  of  goods  of  a  dangerous  character, ■*"  and  may  by  contract 
provide  that  his  HabiHty  in  case  the  goods  are  delayed  before 
delivery  to  another  carrier  shall  be  only  that  of  a  warehouse- 
man.*' 

§  189.  Limitation  of  amount  of  liability. — It  is  the  gen- 
eral rule  that  the  shipper  and  carrier  may  enter  into  a  contract 
upon  a  sufficient  consideration,  usually  a  reduced  freight  rate, 
placing  a  fair  and  good  faith  value  upon  the  goods  carried,  as  a 
basis  of  the  carrier's  charges  and  responsibility,  beyond  which 
value  the  carrier  shall  not  be  liable/^  But  a  mere  arbitrary  and 
unreasonable  valuation  of  the  goods,  inserted  in  the  contract  by 
the  carrier,  without  notice  to  the  shipper,  and  without  considera- 
tion, does  not  bind  the  shipper.*®     Some  authorities  seem  to  hold 


ston,  75  Ala.  596,  51  Am.  Rep.  489; 
St.  Louis  I.  M.  &  S.  R.  Co.  v.  Lesser, 
46  Ark.  236;  Georgia  R.  Co.  v.  Beatie, 
66  Ga.  438,  42  Am.  Rep.  75;  Balti- 
more &c.  R.  Co.  V.  Fox,  113  111.  App. 
180;  Terre  Haute  &c.  R.  Co.  v.  Sher- 
wood, 132  Ind.  129,  31  N.  E.  781,  17 
L.  R.  A.  339,  Z2  Am.  St.  239 ;  Morse  v. 
Canadian  Pac.  R.  Co.,  97  Maine  11 , 
53  Atl.  874;  Myers  v.  Wabash  &c.  R. 
Co.,  90  Mo.  98,  2  S.  W.  263;  Chi- 
cago, St.  P.  &c.  R.  Co.  V.  Schuldt,  66 
Nebr.  43,  92  N.  W.  162;  Pennsyl- 
vania R.  Co.  V.  Raiordan,  119  Pa. 
St.  577,  13  Atl.  324,  4  Am.  St.  670; 
Belts  V.  Farmers'  Loan  &  Trust  Co., 
21  Wis.  80. 

*'Reid  V.  Evansville  &c.  R.  Co.,  10 
Ind.  App.  385,  35  N.  E.  703,  53  Am. 
St.  391 ;  Johnson  v.  W.  Jersey  &c.  R. 
Co.,  78  N.  J.  L.  529,  74  Atl.  496,  138 
Am.  St.  625,  20  Am.  &  Eng.  Ann. 
Cas.  228  and  cases  cited  in  note;  Con- 
stable V.  National  Steamship  Co.,  154 
U.  S.  51,  38  L.  ed.  903,  14  Sup.  Ct. 
1062. 

"Gulf  C.  &  S.  F.  R.  Co.  V.  Gate- 
wood,  79  Tex.  89,  14  S.  W.  913,  10 
L.  R.  A.  419. 
*=  The  Saratoga,  20  Fed.  869. 
^'California  Powder  Works  v.  At- 
lantic &  P.  R.  Co.,  113  Cal.  329,  45 
Pac.  691,  Z(i  L.  R.  A.  648. 

*^  Courteen  v.  Kanawha  Dispatch, 
110  Wis.  610,  86  N.  W.  176,  55  L.  R. 
A.  182. 


** Elliott  R.  R.  (2d  ed.),  §  1510; 
Pierce  v.  Southern  Pac.  R.  Co.,  120 
Cal.  156,  47  Pac.  874,  52  Pac.  302,  40 
L.  R.  A.  350 ;  Russell  v.  Pittsburg  &c. 
R.  Co.,  157  Ind.  305,  61  N.  E.  678,  55 
L.  R.  A.  253,  87  Am.  St.  214;  Graves 
V.  Lake  Shore  &c.  R.  Co.,  137  Jilass. 
?>2>,  50  Am.  Rep.  282;  Hill  v.  Boston 
H.  T.  &  W.  R.  Co.,  144  Mass.  284,  10 
N.  E.  836;  note  88  Am.  St.  105  ct 
seq.  See  cases  cited  in  notes  imme- 
diately following.  Donlon  v.  Soutli- 
ern  Pac.  R.  Co.,  151  Cal.  763,  91 
Pac.  603,  11  L.  R.  A.  (N.  S.)  811,  12 
Am.  &  Eng.  Ann.  Cas.  1118,  and  note 
reviewing  the  authorities;  Atlantic 
Coast  Line  R.  Co.  v.  Dexter,  50  Fla. 
180,  39  So.  634,  111  Am.  St.  116;  Cole 
V.  Minneapolis  &c.  R.  Co.,  117  Minn. 
ZZ,  134  ^.  W.  296;  Greenwald  v.  Bar- 
rett. 199  N.  Y.  170.  92  N.  E.  218,  35 
L.  R.  A.  (N.  S.)  971. 

"Elliott  R.  R.  (2d  ed.),  §  1510; 
Southern  Exp.  Co.  v.  Gibbs,  155  Ala. 
303,  46  So.  465,  18  L.  R.  A.  (N.  S.) 
874n,  130  Am.  St.  24;  Central  of 
Georgia  R.  Co.  v.  Hall,  124  Ga.  322, 
52  S.  E.  679,  4  L.  R.  A.  (N.  S.)  898, 
110  Am.  St.  170;  Chicago  &  N.  W. 
R.  Co.  V.  Chapman,  133  111.  96,  24 
N.  E.  417,  8  L.  R.  A.  508,  22>  Am.  St. 
587  and  note;  Rosenfeld  v.  Peoria 
&c.  R.  Co.,  103  Ind.  121;  Hanson  v. 
Great  Northern  R.  Co.,  18  N.  Dak. 
324,  121  N.  W.  n,  138  Am.  St.  768; 
Adams  Exp,  Co.  v.  Byers  (Ind.),  95 


202  BAILMENTS. 

that  the  shipper  must  fix  the  value  to  make  the  contract  good, 
but  it  is  often  held  that  if  a  receipt  is  voluntarily  accepted  fixing 
a  value  upon  the  goods,  the  owner  is  presumed  to  have  assented 
if  no  unfair  advantage  has  been  taken,  although  the  value  has 
been  placed  by  the  carrier.^*  The  rules  as  to  other  limitations 
by  receipt,  and  the  conditions  under  which  they  are  not  binding, 
apply  of  course  to  this  limitation.  The  authorities  differ  more  as 
to  whether  such  a  stipulation  is  valid  where  the  carrier  is  negli- 
gent. It  is  said  in  Elliott  on  Railroads,^^  "We  believe  that  most 
of  the  apparently  conflicting  decisions  can  be  reconciled  in  accord- 
ance with  the  following  rules:  i.  A  bona  fide  contract,  fairly 
made,  in  advance,  upon  sufficient  consideration,  fixing  the  value 
of  the  property  or  the  rule  for  ascertaining  its  value  in  case  of 
loss  or  injury,  even  if  the  carrier  is  guilty  of  negligence,  is  valid 
and  en  forcible,  and,  if  based  upon  a  lower  rate  of  freight  in  pro- 
portion to  the  decreased  liability,  'will  be  upheld  as  a  proper  and 
lawful  mode  of  securing  a  due  proportion  between  the  amount 
for  which  the  carrier  may  be  responsible  and  the  freight  he  re- 
ceives, and  of  protecting  himself  against  extravagant  and  fanci- 
ful valuation. '^^  2.  A  stipulation  arbitrarily  limiting  the  amount 
of  recovery  in  case  of  the  negligence  of  the  carrier,  without  re- 

N.  E.  513.     A  live  stock  contract  fix-  873;  American  Silk  Dyeing  &c.  Co.  v. 

ing  a  value  at  one-third  of  the  real  Fuller's    Exp.    Co.    (N.    J.),    82    Atl. 

value     is     unreasonable     and     void.  894  (holding  that  if  the  shipper  pre- 

Nashville   &c.    R.    Co.    v.    Stone,    112  pares   the   receipt  and   delivers   it  to 

Tenn.  348,  79  S.  W.  1031,  105  Am.  St.  the    carrier    the    shipper    is    bound)  ; 

955.      Limitation    of     liability    to    a  Nashville   &c.    R.    Co.    v.    Stone,    112 

nominal    amount,    in    this    case    $50,  Tenn.   348,  79  S.  W.   1031,   105  Am. 

where   goods    are    of    much    greater  St.  955. 

value,     makes     the     contract     void.  "Elliott  R.  R.   (2d  ed.),  §  1510. 

Southern    Exp.    Co.    v.    Rothenberg  "^  Donlon  v.  Southern  Pac.  R.  Co., 

Co.,  87  Miss.  656,  40  So.  65,  112  Am.  151  Cal.  763,  91   Pac.  603,  12  Am.  & 

St.  466.  Eng.  Ann.  Cas.  1118  and  note  review- 

^" Atlantic    Coast    Line    R.    Co.    v.  ing  most  of  authorities;  Coupland  v. 

Dexter,  50  Fla.  180,  39  So.  634,   111  Housatonic  R.  Co.,  61  Conn.  531.  23 

Am.  St.  116  (case  of  live  stock  trans-  Atl.  870,  15  L.  R.  A.     534;  Atlantic 

portation)  ;  John  Hood  Co.  v.  Amer-  Coast  Line  R.  Co.  v.  Dexter,  50  Fla. 

ican  Pneumatic  Service  Co.,  191  Mass.  180,    39    So.    634,    111    Am.    St.    116; 

27,  n  N.   E.  638;   Hart  v.   Pennsyl-  Bernard    v.    Adams    Exp.    Co.,    205 

vania  R.   Co.,   112  U.   S.   331,  28  L.  Mass.  254,  91   N.   E.  325,   18  Am.  & 

ed.   717,   5    Sup.    Ct.    151.     Assent   is  Eng.  Ann.  Cas.  353  and  note;  Graves 

presumed   from  the  shipper's   signa-  v.  Lake  Shore  &c.  R.  Co.,  137  Mass. 

ture  if  there  was  no   fraud,   misrep-  ZT),  50  Am.  Rep.  282;  Hart  v.  Penn- 

resentation   npr  concealment.     Baker  svlvania  R.  Co.,  112  U.  S.  331,  28  L. 

V.  Atlantic  Coast  Line  R.  Co.,  82  S.  ed.  717,  5  Sup.  Ct.  151. 
Car.  146,  63  S.  E.  611,  129  Am.  St. 


LIMITATION    OF    LIABILITY    BY    CONTRACT 


20  • 


gard  to  the  value  of  the  property,  is  invahd,^^  except,  perhaps,  in 
the  few  jurisdictions  in  which  a  carrier  can  contract  for  an  ex- 
emption from  Habihty  for  its  own  neghgence.  3.  The  agreement 
as  to  value  must  be  made  in  good  faith  and  not  forced  upon  the 
shipper  by  unreasonable  rates  for  a  higher  valuation.^*  4.  A 
carrier  may  make  reasonable  regulations,  graduating  its  compen- 
sation according  to  the  value  of  the  property  and  requiring  a  dis- 
closure of  such  value  for  the  purpose  of  fixing  its  compensation, 
and  providing  that,  in  case  of  the  failure  of  the  shipper  to  disclose 
the  value  as  required,  it  shall  be  deemed  not  to  exceed  a  certain 
specified  sum,^^  5.  If  the  shipper,  upon  inquiry  duly  made  by 
the  carrier  as  to  the  value  of  the  goods,  gives  a  false  valuation, 
in  order  to  obtain  reduced  rates,  and  deceives  the  carrier  thereby. 


*^  Southern  Exp.  Co,  v.  Gibbs,  155 
Ala.  303,  46  So.  465,  18  L.  R.  A.  (N. 
S.)  874n,  130  Am.  St.  24;  Southern 
Exp.  Co,  V.  Owens,  146  Ala.  412,  41 
So.  752,  8  L.  R.  A.  (N.  S.)  369n,  119 
Am.  St.  41.  "The  fixing  of  a  mere 
arbitrary  sum,  ■without  any  reference 
to  the  real  value,  and  merely  for  the 
purpose  of  fixing  the  limit  of  the 
carrier's  liability,  will  not  ordinarily 
be  held  to  be  'just  and  reasonable  in 
the  eye  of  the  law.'"  Hanson  v. 
Great  Northern  R.  Co.,  18  N.  Dak. 
324,  121  N,  W.  78,  138  Am.  St.  768. 
See  also.  Southern  Exp.  Co.  v, 
Marks,  87  Miss.  656,  40  So.  65,  112 
Am.  St.  466;  Chicago  &c.  R.  Co.  v. 
Chapman,  133  111.  96,  24  N.  E.  417,  8 
L.  R.  A,  508,  23  Am.  St.  587  and 
note ;  Nashville  &c.  R.  Co.  v.  Stone, 
112  Tenn.  348,  79  S.  W.  1031,  IDS 
Am.  St.  955.  See,  as  in  case  of  em- 
bezzlement of  the  goods  by  the  car- 
rier's agent,  Adams  Exp.  Co.  v. 
Berry  &  Whitmore  Co.,  35  App.  (D. 
C.)  208,  31  L.  R.  A.  (N.  S.)  309  and 
note.  Abrams  v.  Milwaukee  &c.  R. 
Co.,  87  Wis.  485,  58  N.  W.  780,  41 
Am.  St.  55. 

■^Louisville  &c.  R.  Co,  v.  Sherrod, 
84  Ala.  178,  4  So.  29;  Overland  Mail 

6  Exp.  Co.  V.  Carroll,  7  Colo.  43, 
1  Pac.  682;  Louisville  &c.  R.  Co.  v. 
Gilbert,  88  Tenn.  430,  12  S.  W.  1018, 

7  L.  R.  A.  162,  1  Lewis  Am.  R.  & 
Corp.  Cas.  468. 

"  Graves  v.  Lake  Shore  &c.  R.  Co., 
137  Mass.  33,  50  Am.  Rep.  282 ;  Dunt- 


ley  V,  Boston  &  M,  R,  Co.,  66  N.  H. 
263,  20  Atl.  327,  9  L.  R.  A.  449,  3 
Lewis  Am.  R.  &  Corp.  Cas.  259;  Hart 
V.  Pennsylvania  R.  Co.,  112  U.  S.  331, 
28  L.  ed.  717,  5  Sup,  Ct.  151.  See 
George  N.  Pierce  Co,  v.  Wells,  189 
Fed.  561,  110  C,  C,  A.  645.  Where  a 
carrier  accepted  a  box  of  ordinary 
appearance  which  contained  jewelry 
worth  several  thousand  dollars,  and 
issued  the  ordinary  express  receipt, 
containing  a  clause  limiting  the  com- 
pany's liability  to  $50  in  case  of  loss, 
unless  a  higher  value  was  fixed  by 
the  shipper,  and  a  higher  rate  of 
freight  paid,  and  no  value  was  fixed, 
and  nothing  was  said  about  the  value, 
and  the  shipper  paid  only  $1.50  as 
freight,  and  after  the  box  was  car- 
ried to  its  destination  a  fire  broke 
out  in  the  company's  warehouse  be- 
fore it  had  time  to  deliver  the  box, 
and  though  valuable  freight  was 
saved,  there  was  no  time  to  save 
ordinary  freight,  it  was  held  that  re- 
covery could  be  had  for  more  than 
$50  only  in  case  of  gross  or  wilful 
negligence.  Oppenheimer  v.  United 
States  Exp.  Co.,  69  III.  62,  18  Am. 
Rep.  596.  The  carrier  may,  by  ac- 
cepting the  package  with  knowledge 
of  what  it  contains,  estop  himself 
from  asserting  the  above  mentioned 
provision  of  his  receipt.  Rathbone 
v.  New  York  Cent.  &  H.  R.  R.  Co., 
140  N.  Y.  48,  35  N.  E.  418,  revg.  69 
Hun  (N,  Y.)  617,  23  N.  Y.  S.  1148, 


204  BAILMENTS. 

he  will  be  estopped  by  his  fraud  from  claiming  and  recovering 
any  greater  amount  in  case  they  are  lost  or  injured. "^^ 

If  there  has  been  an  agreed  valuation  of  the  goods  and  the  loss 
has  been  only  partial,  it  is  held  that  the  shipper  can  recover  only 
a  proportionate  part  of  the  agreed  value,^^  though  some  courts 
hold  that  the  actual  value  of  the  portion  destroyed  may  be  recov- 
ered.^^ Sometimes  it  is  stipulated  that  the  carrier  shall  be  liable 
in  case  of  loss  only  for  the  value  of  the  goods  at  the  time  and 
place  of  shipment.  This  is  construed  to  mean  the  value  when 
received  by  the  carrier,  including  the  amount  paid  for  freight.^^ 
It  is  generally  held  that  such  a  contract  is  valid,®"  since  parties 
may  lawfully  limit  the  amount  to  be  recovered,  but  other  courts, 
recognizing  that  the  usual  measure  of  damages  is  the  market 
value  of  the  goods  at  the  place  of  destination  in  good  condition, 
hold  this  a  limitation  upon  the  carrier's  liability  which  is  invalid 
where  the  loss  was  caused  by  negligence.®^ 

§  190.  Effect  in  case  of  abandonment  or  completion  of 
contract. — When  the  owner  stops  the  goods  in  transit,  this 
ends  the  old  contract  of  carriage,  and  if  after  that  time  the  carrier 

"Hayes  v.  Wells,  23  Cal.  185,  83  Co.,    28    Mont.    297,    72    Pac.   642; 

Am.  Dec.  89;  Chicago  &  A.  R.  Co.  Starnes  v.  Louisville  &c.   R.  Co.,  91 

V.    Shea,    66    111.    471 ;    Rosenf eld    v.  Tenn.  516,  19  S.  W.  675. 

Peoria  &c.  R.  Co.,  103  Ind.  121,  2  N.  ^'Pierce  v.   Southern   Pac.   R.   Co., 

E.  344,  53  Am.  Rep.  500 ;   Ballon  v.  120  Cal.  156,  47  Pac.  874,  52  Pac.  302, 

Earle,  17  R.  I.  441,  22  Atl.  1113,  14  L.  40  L.  R.  A.  350;  Shea  v.  Minneapolis 

R.  A.  433,  33  Am.  St.  881 ;  Shacht  v.  &c.  R.  Co.,  63  Minn.  228,  65  N.  W. 

Illinois  Cent.  R.  Co.,  94  Tenn.  658,  30  458;  Kelly  v.  Southern  R.  Co..  84  S. 

S.  W.  742,  28  L.  R.  A.  176.    See  cases  Car.  249,  66  S.  E.   198,  137  Am.   St. 

cited  in  note  44,  §    173.     But  if  there  842. 

is  no  special  contract  limiting  liability,  *°  Louisville  &c.  R.  Co.  v.  Oden,  80 

the  shipper  is  not  bound  to  inform  Ala.  38;  Pierce  v.   Southern  Pac.  R. 

the  carrier  of  the  value  of  the  goods  Co.,  120  Cal.  156,  47  Pac.  874,  52  Pac. 

without    inquiry    and    the    carrier    is  302,   40  L.   R.    A.   350;    The   Lydian 

liable  for  the  true  value  if  no  unfair  IMonarch,  23  Fed.  298;  I^.Ierchants'  & 

means  are  used  to  deceive  him,  and  Miners'  Transp.  Co.  v.  Eichberg,  109 

no  inquiry  was  made.    Hart  v.  Penn-  Ud.  211,  71  Atl.  993.  130  Am.  St.  524; 

sylvania  R.  Co.,  112  U.  S.  331,  28  L.  Squire  v.  New  York  Cent.  R.  Co.,  98 

ed.  717,  5  Sup.  Ct.  151.  Mass.  239,  93  Am.  Dec.  162;  Shea  v. 

"United  States  Exp.  Co.  v.  Joyce,  Jslinneapolis  &c.  R.  Co.,  63  Minn.  228, 

36  Ind.  App.  1,  69  N.  E.  1015,  affd.  65  X.  W.  458. 

76  N.   E.   1117.     See  72  N.   E.  865;  •«  Illinois  Cent.  R.  Co.  v.  Bogard,  78 

Greenfield  v.  Wells,  134  N.  Y.  S.  913.  Miss.  11,  27  So.  879;  Ruppel  v.  Alle- 

^'  Brown  v.  Cunard  Steamship  Co.,  fihenv  Vallev  R.  Co.,  167  Pa.  St.  166, 

147  Mass.  58,  16  N.  E.  717;  Goodman  31  Atl.  478.  46  Am.  St.  666;  Southern 

V.  Missouri  &c.  R.  Co.,  71  IMo.  App.  Pac.  R.  Co.  v.  D'Arcais,  27  Tex.  Civ. 

460;    Nelson  v.   Great   Northern   R.  App.  57,  64  S.  W.  813. 


LIMITATION    OF    LIABILITY    BY    CONTRACT.  205 

negligently  delivers  the  goods,  it  has  been  held  that  the  agreement 
limiting  liability  has  been  superseded  by  a  new  legal  relation  be- 
tween the  parties,  and  the  owner  can  recover  the  actual  loss.*^" 
So  if  the  carrier  converts  the  goods,  he  has  abandoned  the  con- 
tract of  shipment,  and  cannot  rely  upon  it  to  lessen  his  liability."' 

§  191.  Limitation  of  time  in  which  claim  for  loss  must  be 
made. — A  frequent  stipulation  in  a  carrier's  receipt  is  that 
the  carrier  will  be  liable  for  no  loss  or  damage  to  goods  unless 
claim  is  made  within  a  certain  specified  time,  and  usually  in  a  cer- 
tain manner,  as  in  writing,  or  verified.  These  conditions  are  up- 
held by  the  courts  where  reasonable  and  based  on  a  valid  consid- 
eration,^* since  it  is  said  that  they  are  proper  in  order  to  enable 
the  carrier  to  have  a  prompt  opportunity  to  inform  himself  of  the 
actual  facts  regarding  the  nature  and  extent  of  the  loss  before 
too  great  a  time  has  elapsed,  or  to  trace  and  recover  lost  property. 
Whether  the  condition  is  reasonable  in  a  particular  case  depends 
mostly  upon  the  time  which  in  the  ordinary  course  of  business 
might  be  expected  to  elapse  before  the  owner,  using  ordinary  dili- 
gence, could  present  the  notice,*"^  and  if  the  injury  were  such  that 
the  owner  could  not  have  discovered  it  until  after  the  time  for 
presenting  notice  mentioned  in  the  receipt  had  passed,  the  condi- 
tion as  applied  to  such  a  case  is  not  reasonable.^*^     Stipulations 

•^Rosenthal  v.  Weir,  170  N.  Y.  148,  431,  116  Am.  St.  730  and  note,  9  Am. 

33  N.  E.  65.  57  L.  R.  A.  527.  &  Eng.  Ann.  Cas.  IS ;  Southern  Exp. 

Savannah    &c.    R.    Co.    v.    Sloat,  Co.  v.  Caldwell,  21  Wall.  (U.  S.)  264, 

93  Ga.  803,  20  S.  E.  219;  Georgia  &c.  22  L.  ed.  556;  Houtz  v.  Union  Pac. 

R.  Co.  V.  Johnson,  121  Ga.  231,  48  S.  R.  Co.,  33  Utah  175,  93  Pac.  439,  17 

E.    807;    United    States    Exp.    Co.    v.  L.  R.   A.    (N.    S.)    628n.     A   stipula- 

Joyce  (Ind.),  72  N.  E.  865  (See  also,  tion  that  claim  must  be  made  within 

"agj^E^lU,  69  N.  E.  1015).   Where  reasonable     time     after     delivery     is 


i 


e  goods   were   converted  after  the  valid.     Deaver-Jeter  Co.  v.   Southern 

contract   of   carriage  was  completed,  R.  Co.   (S.  Car.),  74  S.  E.  1071. 

and  the  carrier  sued  for  such  conver-  ^  Kansas   &c.   R.   Co.   v.   Avers,   63 

sion,    he    cannot    claim    benefit    of    a  Ark.   331,    38   S.   W.   515;   Baxter   v. 

stipulation    limiting    the    amount    of  Louisville  &c.  R.  Co.,  165  111.  78,  45 

recovery.     Central  R.  Co.  v.  Chicago  N.  E.  1003;  Cox  v.  Vermont  Cent.  R. 

Portrait   Co.,    122   Ga.    11,   49   S.    E^  Co.,    170   Mass.    129,    49    N.    E.    97; 

2Z»^106  Am.  St.  87.  ""  International  &c.    R.    Co.   v.   Garrett, 

lliott  R.  R.  (2d  ed.),  §  1512  and  5  Tex.  Civ.  App.  540,  24  S.  W.  354. 
cases   cited;   Atchison  &c.   R.   Co.   v.  '/  '"Louisville  &c.  R.  Co.  v.  Steele,  6 

Temple,   47  Kans.  7,  27   Pac.  98,   13  Ind.  App.  183,  33  N.  E.  236;  Atchison 

L.  R.  A.  362;  Selly  v.  Wilmington  &c.  &c:  R".  "Co.  V.  Temple,  47  Kans.  7.  27 

R.  Co.,  113  N.  Car.  588,  18  S.  E.  88,  Pac.  98,   13  L.  R.   A.  362;   Oxlcy  v. 

37  Am.  St.  635;  Pennsylvania  R.  Co.  St.  Louis.  K.  C.  &  N.  R.  Co.,  65  Mo. 

V.  Shearer,  75  Ohio  St.  249,  79  N.  E.  639;  George  v.  Chicago,  R.   I.  &   P. 


2o6 


BAILMENTS. 


that  notice  of  a  claim  for  loss  must  be  presented  within  three,*''^ 
five/*  ten,®^  thirty ^"^  and  ninety '^^  days  from  date  of  the  receipt  or 
the  unloading  of  the  stock,  or  that  written  notice  must  be  given 
before  stock  is  unloaded  and  mingled  with  others/"  have,  under 
the  circumstances,  been  held  reasonable.  On  the  other  hand  thirty- 
six  hours'  time  has  been  held  unreasonable/^  though  in  one  case 
thirty  hours'  time  was  considered  reasonable,'*  and  under  certain 
circumstances  a  period  of  thirty  days  has  been  held  unreasonable.^^ 
The  carrier  may  contract  that  in  case  of  loss  or  injury  to  the 
goods  suit  shall  be  brought  within  a  specified  time  less  than  that 
allowed  by  the  statute  of  limitations,  and,  if  the  time  is  reasonable, 
such  limitation  will  be  enforced.'®    If  the  carrier  has  converted 


R.  Co.,  214  Mo.  551,  113  S.  W.  1099, 
'127  Am.  St.  690.  See  Chicago,  R.  I. 
&  P.  R.  Co.  V.  Spears,  31  Okla.  469, 
122  Pac.  228, 

'^  Lewis  Y.  Great  Western  R.  Co., 
5  H.  &  N.  867;  Oxley  v.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  65  AIo.  629. 

•"Black  V.  Wabash  R.  Co.,  Ill  111. 
351,  53  Am.  Rep.  628;  Anderson  v. 
Lake  Shore  R.  Co.,  26  Ind.  App.  196, 
59  N.  E.  396;  Pennsylvania  R.  Co. 
V.  Shearer,  75  Ohio  St.  249,  79  N. 
E.  431,  116  Am.  St.  730,  9  Am.  & 
Eng.  Ann.  Cas.  15;  Pavitt  v.  Lehigh 
&c.  R.  Co.,  153  Pa.  St.  302,  25  Atl. 
1107. 

•=»The  Arctic  Bird,  109  Fed.  167; 
Case  V.  Cleveland,  C.  C.  &  St.  L.  R. 
Co.,  11  Ind.  App.  517,  39  N.  E.  426; 
Grieve  v.  Illinois  Cent.  R.  Co.,  104 
Iowa  659,  74  N.  W.  192. 

'"United  States  Exp.  Co.  v.  Harris. 
51  Ind.  127;  Weir  v.  Express  Co.,  5 
Phila.  (Pa.)  355;  Southern  Exp.  Co. 
V.  Glenn,  16  Lea  (Tenn.)  472,  1  S. 
W.  102;  Liquid  Carbonic  Co.  v.  Nor- 
folk &c.  R.  Co.,  107  Va.  323,  58  S.  E. 
569,  13  L.  R.  A.  (N.  S.)  753  and 
note. 

'"■  Broadwood  v.  Southern  Exp.  Co., 
148  Ala.  17,  41  So.  769;  Southern 
Exp.  Co.  V.  Caldwell,  21  Wall.  (U. 
S.)  264,  22  L.  ed.  556.  Or  within 
four  months  after  delivery.  Atlantic 
Coast  Line  R.  Co.  v.  Ward  (Ala. 
App.),  58  So.  677. 

"  Roberts  v.  Georgia  Southern  R. 
Co.  (Ga.  App.),  72  S.  E.  942;  Wich- 
ita &c.  R.  Co.  V.  Koch,  47  Kans.  753, 


28  Pac.  1013;  Selly  v.  Wilmington 
&c.  R.  Co.,  113  N.  Car.  588,  18  S.  E. 
88,  37  'Am.  St.  635.  Before  mingling 
and  within  one  day  after  delivery,  St. 
Louis  &  S.  F.  R.  Co.  v.  Pearce,  82 
Ark.  353,  101  S.  W.  760,  118  Am.  St. 
75. 

"Jennings  v.  Grand  Trunk  R.  Co., 
127  N.  Y.  438,  28  N.  E.  394. 

'^  St.  Louis  &  S.  F.  R.  Co.  v.  Hurst, 
67  Ark.  407,  55  S.  W.  215. 

'°  Southern  Exp.  Co.  v.  Bank  of 
Tupelo,  108  Ala.  517,  18  So.  664; 
Southern  Exp.  Co.  v.  Caperton,  44 
Ala.  101,  4  Am.  Rep.  118;  Adams 
Exp.  Co.  V.  Reagan,  29  Ind.  21,  92 
Am.  Dec.  332.  Stipulation  that  claim 
is  to  be  made  within  thirty  days  after 
delivery  or  after  due  time  for  deliv- 
ery is  unreasonable.  Gwvn  Harper 
Co.  V.  Carolina  Cent.  R.  Co.,  128  N. 
Car.  280,  38  S.  E.  894,  83  Am.  St. 
675. 

'*  Central  Vermont  R.  Co.  v.  Soper, 
59  Fed.  879,  8  C.  C.  A.  341 ;  Gulf  &c. 
R.  Co.  v.  Gatewood,  79  Tex.  89,  14 
S.  W.  913,  10  L.  R.  A.  419;  Gulf  &c. 
R.  Co.  V.  Trawick,  68  Tex.  314,  4  S. 
W.  567,  2  Am.  St.  494.  See  Adams 
Exp.  Co.  V.  Walker,  119  Kv.  121,  26 
Ky.  L.  1025,  83  S.  W.  106,  67  L.  R.  A. 
412,  and  Gulf  &c.  R.  Co.  v.  Hume,  87 
Tex.  211,  27  S.  W.  110,  for  cases  in 
which  such  a  stipulation  has  not 
been  upheld. 

"Merchants'  &c.  Transp.  Co.  v. 
Moore,  124  Ga.  482,  52  S.  E.  802; 
Chicago  &  S.  E.  R.  Co.  v.  Fifth  Nat 
Bank,  26  Ind.  App.  600,  59  N.  E.  43. 


LIMITATION    OF    LIABILITY    BY    CONTRACT. 


207 


the  goods/'  or  if  they  have  never  arrived  at  the  destination/®  the 
carrier  cannot  set  up  a  stipulation  that  it  was  to  be  notified  Mrithin 
a  certain  time  after  arrival  of  the  goods  at  the  destination,  nor 
can  it  avail  itself  of  such  a  stipulation  if  the  goods  were  deliv- 
ered to  the  wrong  person.'^  So,  it  has  been  held  that  a  claim 
for  damages  caused  by  delay  need  not  be  presented  by  notice, 
since  in  this  case  the  carrier  has  all  the  information  in  its  posses- 
sion and  the  reason  for  notice  is  lacking.®"  And  it  has  also  been 
held  that  it  is  not  necessary  to  give  notice  as  a  condition  precedent 
to  recovery  for  damages  due  to  falling  of  the  market.®^ 

§  192.  When  limitation  does  not  apply — Waiver. — The 
carrier  may  waive  compliance  with  the  stipulation  in  regard  to 
notice  by  inducing  the  shipper  to  delay  presenting  his  claim,*^ 
by  accepting  a  verbal  notice  or  a  notice  defective  in  form/^  by 
failing  to  insert  in  the  contract  sufficient  infonnation  to  enable 


'*  Central  R.  Co.  v.  Pickett,  87  Ga. 
734,  13  S.  E.  750 ;  Richardson  v.  Chi- 
cago &  A.  R.  Co.,  149  Mo.  311,  50 
S.  W.  782,  13  Am.  &  Eng.  R.  Cas. 
(N.  S.)  170;  Ward  v.  Missouri  Pac. 
R.  Co.,  158  Mo.  226,  58  S.  W.  28; 
Marrus  v.  New  Haven  Steamboat 
Co.,  30  Misc.  (N.  Y.)  421,  62  N.  Y. 
S.  474. 

"Southern  R.  Co.  v.  Webb,  143 
Ala.  304,  39  So.  262,  5  Am.  &  Eng. 
Ann.  Cas.  97  and  note;  Ridgeway 
Grain  Co.  v.  Pennsylvania  R.  Co., 
228  Pa.  641,  11  Atl.  1007,  31  L.  R.  A. 
(N.  S.)  1178  and  note. 

*»  Kramer  v.  Chicago,  M.  &  St.  P. 
R.  Co.,  101  Iowa  178,  70  N.  W.  119; 
Atchison  &c.  R.  Co.  v.  Poole,  IZ 
Kans.  466,  87  Pac.  465;  Wright  v. 
Chicago,  B.  &  Q.  R.  Co.,  118  Mo.  App. 
392,  94  S.  W.  555 ;  Pecos  &c.  R.  Co. 
V.  Evans-Snyder-Buel  Co.,  42  Tex. 
Civ.  App.  60,  93  S.  W.  1024,  affd.  100 
Tex.  190,  97  S.  W.  466. 

"'Houtz  v.  Union  Pac.  R.  Co.,  ZZ 
Utah  175,  93  Pac.  439,  17  L.  R.  A. 
(N.  S.)  628. 

^Hutchinson  Carriers  (3d  ed.), 
§  444;  Hudson  v.  Northern  Pac.  R. 
Co.,  92  Iowa  231,  60  N.  W.  608,  54 
Am.  St.  550;  Merrill  v.  American 
Exp.  Co.,  62  N.  H.  514;  Bennett  v. 
Northern  Exp.  Co.,  12  Ore.  49,  6  Pac. 
160.  As  where  the  carrier  consumes 


rnore  than  the  specified  time  in  inves- 
tigation of  the  claims,  and  promises 
before  the  expiration  of  the  time  that 
it  will  not  take  advantage  of  the 
limitation.  Adams  v.  Colorado  &c. 
R.  Co.,  49  Colo.  475,  113  Pac.  1010, 
36  L.  R.  A.  (N.  S.)  412.  The  limita- 
tion time  was  ten  days,  and  the  ship- 
per next  day  told  the  carrier's  agent 
he  wanted  to  put  in  a  claim.  The 
agent  told  him  to  see  another  agent 
who  sent  him  to  a  third  and  the  third 
told  the  shipper  to  write  him  a  letter. 
It  was  held  that  the  limitation  was 
complied  with,  though  the  shipper 
did  not  get  the  letter  written  within 
ten  days.  Reynolds  v.  Great  North- 
ern R.  Co.,  40  Wash.  163,  82  Pac. 
161,  111  Am.  St.  883. 

«^St.  Louis,  I.  M.  &  S.  R.  Co.  V. 
Jacobs,  70  Ark.  401,  68  S.  W.  248; 
Chicago  &  A.  R.  Co.  v.  Grimes,  71 
111.  App.  397;  Frankfurt  v.  Weir,  40 
Misc.  (N.  Y.)  683,  83  N.  Y.  S.  112; 
Missouri  &c.  R.  Co.  v.  Davis,  24 
Okla.  677,  104  Pac.  34,  24  L.  R.  A. 
(N.  S.)  866  and  note.  Stipulation 
that  notice  should  be  given  in  writing 
before  the  stock  was  unloaded  is 
waived  where  the  shipper  telephoned 
to  the  carrier's  agent  before  unload- 
ing the  car  that  some  animals  were  in- 
jured, and  was  told  to  get  a  veterin- 
arian   and   the   agent    would   settle. 


208  BAILMENTS. 

the  shipper  to  comply  with  the  conditions  of  notice,^*  by  having 
no  agent  to  whom  notice  can  be  given,®^  or  by  failing  to  object 
to  a  claim,  with  knowledge,  on  the  ground  that  it  was  not  pre- 
sented within  the  fixed  time.®^  It  has  likewise  been  held  waived 
when  the  carrier  has  actual  notice  within  the  stipulated  time 
and  does  not  raise  the  question  of  failure  to  present  in  the  stipu- 
lated manner  until  time  of  trial. ^'  If  it  is  also  provided  in  the 
receipt  that  no  agent  shall  have  power  to  waive  any  of  its  pro- 
visions, conduct  by  an  agent  in  regard  to  notice  of  claim  for  loss 
which  would  ordinarily  amount  to  a  waiver  may  not  estop  the 
carrier.^^  It  is  held  that  where  the  carrier  knew  the  goods  were 
destroyed  by  fire  while  in  its  possession,  there  is  no  need  for  no- 
tice,*^ and  the  tendency  of  recent  decisions  seems  to  be  to  hold 
that  w^here  a  carrier  has  actual  notice  of  the  loss  within  the  time 
set  by  contract,  it  is  not  necessary  that  a  formal  claim  should  be 
made  within  that  time,  since  the  purpose  of  such  notice  of  claim, 
that  is,  that  the  carrier  may  inform  himself,  has  already  been 
subserved. 

§  193.  Condition  precedent  and  burden  of  proof. — Some 
cases  hold  that  compliance  with  notice  is  a  condition  precedent 
to  the  shipper's  right  to  recover  for  injuries  to  goods,  and  to  make 
out  his  case  he  must  either  show  compliance  or  that  the  circum- 
stances made  the  condition  unreasonable.®"     The  weight  of  au- 

Gilliland  v.   Southern   R.   Co.,  85  S.  Minn.   188,  69  N.  W.  720;   Missouri 

Car.  26,  67  S.  E.  20,  27  L.  R.  A.  (N.  Pac.  R.  Co.  v.  Harris,  67  Tex.  166,  2 

S.)    1106,  137  Am.   St.  861.     Stipula-  S.  W.  574;  Good  v.  Galveston  &c.  R. 

tion  that  notice  shall  be  given  in  cer-  Co.   (Tex.),  11  S.  W.  854,  40  Am.  & 

tain    manner    within    certain    time    is  Eng.  R.  Cas.  98. 

waived  where  the  carrier's  agent  ex-  ^  Merchants'  &  Miners'  Transp.  Co. 

amines  the  injury  to  goods  to  ascer-  v.  Eichberg,  109  Md.  211,  71  Atl.  993, 

tain  its  extent,  and  after  examination  130  Am.  St.  524. 

and  ascertainment  of  the  injury,  di-  *'  Eckert    v.    Pennsylvania    R.    Co., 

rects  the  disposition  of  the  goods,  or  211  Pa.  St.  267,  60  Atl.  781,  107  Am. 

■promises  adjustment.  Kelly  v.  South-  St.  571. 

ern    R.    Co..   84    S.   Car.   249,   66   S.  *' Missouri  &c.  R.  Co.  v.  Kirkham, 

E.  198.  137  Am.  St.  842.  63  Kans.  255,  65  Pac.  261 ;   Missouri 

"Wabash  R.  Co.  v.  Brown,  152  111.  &c.  R.  Co.  v.  Davis,  24  Okla.  677.  104 

484,  39  N.  E.  273;   Smitha  v.  Louis-  Pac.  34,  24  L.  R.  A.   (N.  S.)   866. 

ville  &c.   R.   Co..  86  Tenn.   198.  6  S.  «» Deaver-Jeter  Co.  v.   Southern  R. 

W.  209;  Missouri  Pac.  R.  Co.  v.  Har-  Co.    (S.   Car.),  74   S.    E.    1071. 

ris,  67  Tex.   166,  2  S.  W.  574;  Nor-  '"Chicago  &  A.  R.  Co.  v.  Simms,  18 

folk  &c.  R.  Co.  v.  Reeves,  97  Va.  284,  111.  App.  68;  Case  v.  Cleveland.  C.  C 

33  S.  E.  606.  &  St.  L.  R.  Co.,  11  Ind.  App.  517,  39 

*°  Carpenter  v.   Eastern  R.   Co.,  67  N.  E.  426;  Kalina  v.  Union  Pac.  R. 


LIMITATION    OF   LIABILITY    BY    CONTRACT. 


209 


thority,  however,  seems  to  be  to  the  effect  that  such  a  stipula- 
tion is  a  limitation  upon  the  owner's  rights,  and  that  the  carrier 
must  as  a  matter  of  defense  show  that  the  condition  was  reason- 
able and  that  the  owner  failed  to  comply  with  it.®^  When  it  is 
proved  that  goods  were  injured  in  the  possession  of  a  carrier, 
the  carrier  usually  has  the  burden  of  proving  that  a  loss  falls 
within  a  contract  exception,®-  and  in  some  jurisdictions  he  must 
show  freedom  from  negligence,®^  but,  by  the  weight  of  authority, 
when  the  carrier  shows  that  the  loss  arose  from  an  excepted 
cause,  the  burden  is  then  upon  the  shipper  to  prove  the  carrier's 
negligence.®* 

§  194.  Effect  of  contract  limitations  in  case  of  negligence. 
' — ^The  most  of  our  courts,  upon  considerations  of  public  policy, 
will  not  enforce  a  contract  limiting  liability  for  the  negligence 
of  a  carrier  or  his  servants.®^   But  in  some  states  the  carrier  may 


Co.,  69  Kans.  172,  Id  Pac.  438 ;  Penn- 
sylvania R.  Co.  V.  Shearer,  75  Ohio 
St.  249,  79  N.  E.  431,  116  Am.  St. 
730,  9  Am.  &  Eng.  Ann.  Cas.  15. 

"  Hoye  V.  Pennsylvania  R.  Co.,  191 
N.  Y.  101,  83  N.  E.  586,  14  Am.  & 
Eng.  Ann.  Cas.  414  and  note,  affg. 
114  App.  Div.  (N.  Y.)  821,  100  N. 
Y.  S.  190;  Cox  v.  Vermont  Cent.  R. 
Co.,  170  Mass.  129,  49  N.  E.  97;  Ft. 
Worth  &c.  R.  Co.  V.  Greathouse,  82 
Tex.  104.  17  S.  W.  834.  See  notes,  9 
Am.  &  Eng.  Ann.  Cas.  17,  and  14 
Am.  &  Eng.  Ann.  Cas.  416. 

•=  Elliott  R.  R.  (2d  ed.),  §  1516; 
Terre  Haute  &c.  R.  Co.  v.  Sherwood, 

132  Ind.  129,  31  N.  E.  781,  17  L.  R. 
A.  339  and  note,  32  Am.  St.  239; 
Parker  v.  Atlantic  Coast  Line  R.  Co., 

133  N.  Car.  335,  45  S.  E.  658,  63  L. 
R.  A.  827;  Gaines  v.  Union  Transp. 
&  Ins.  Co.,  28  Ohio  St.  418;  Mer- 
chants* Dispatch  Transp.  Co.  v.  Block, 
86  Tenn.  392,  6  S.  W.  881,  6  Am.  St. 
847. 

*^See  cases  cited  in  Elliott  R.  R. 
C2d  ed.).  §  1516;  Shea  v.  Minneap- 
olis &c.  R.  Co.,  63  Minn.  228.  65  N. 
W.  458;  Johnson  v.  Alabama  &c.  Co., 
69  Miss.  191.  11  So.  104,  30  Am.  St. 
534;  Mitchell  v.  Carolina  Central  R. 
Co..  124  N.  Car.  236,  32  S.  E.  671,  44 
L.  R.  A.  515. 

•*  Elliott   R.    R.    (2d   ed.),    §    1516 

Bailments — 14 


and  cases  cited;  Hutchinson  Carriers 
(3d  ed.),  §  449;  Insurance  Co.  of 
North  America  v.  Lake  Erie  &c.  R. 
Co.,  152  Ind.  ZIZ,  53  N.  E.  382 ;  Pat- 
terson V.  Clyde,  67  Pa.  St.  500;  Wit- 
ting V.  St.  Louis  R.  Co.,  101  Mo.  631, 

14  S.  W.  743,  10  L.  R.  A.  602,  20  Am. 
St.  636;  Nashville  &c.  R.  Co.  v.  Stone, 
112  Tenn.  348,  79  S.  W.  1031,  105 
Am.  St.  955. 

'^Southern  Exp.  Co.  v.  Owens,  146 
Ala.  412,  41  So.  752,  8  L.  R.  A.  (N. 
S.)  369n;  St.  Louis,  I.  M.  &  S.  R.  Co. 
V.  Jones,  93  Ark.  537,  125  S.  W.  1025, 
137  Am.  St.  99;  Adams  v.  Colorado 
&c.  R.  Co.,  49  Colo.  475,  113  Pac. 
1010,  36  L.  R.  A.  (N.  S.)  412;  Sum- 
merlin  v.  Seaboard  Air  Line  R.  Co., 
56  Fla.  687.  47  So.  557,  19  L.  R.  A. 
(N.  S.)  191,  131  Am.  St.  164;  Sou- 
thern Exp.  Co.  V.  Hanaw,  134  Ga. 
445,  67  S.  E.  944,  137  Am.  St.  227; 
Chicago  &  N.  W.  R.  Co.  v.  Calumet 
Stock  Farm,  194  111.  9.  61  N.  E. 
1095,  88  Am._  St.  68  and  note  citing 
many   authorities;    Roberts   v.    Rilev, 

15  La.  Ann.  103,  11  Am.  Dec.  183: 
Fisher  v.  Boston  &  M.  R.  Co..  09 
Maine  338,  59  Atl.  532,  68  L.  R.  A. 
390,  105  Am.  St.  283;  Hoadlev  v. 
Northern  Transp.  Co.,  115  Mass.  304. 
15  Am.  Rep.  106;  Southern  Exn.  Co. 
V.  Rothenburg  Co.,  87  Miss.  656.  40 
So.  65,    112  Am.   St.   466;   Baker  v. 


2IO 


BAILMENTS. 


contract  for  exemption  from  any  liability  for  negligence  of  his 
agents  or  servants,"*^  in  others  from  liability  for  other  than  gross 
negligence,^''  and  he  may  contract  that  negligence  shall  not  be 
presumed  against  the  carrier,  thus  throwing  the  burden  of  proof 
of  negligence  upon  the  shipper.^®  No  contract  exempting  frorr- 
the  consequences  of  negligence  will  be  enforced  by  any  court 
unless  clear  and  explicit,  and  unless  in  plain  terms  it  includes 
the  exemption  sought  to  be  set  up  by  the  carrier.®® 

§  195.  Authority  of  shipper's  or  carrier's  agent  to  limit 
liability. — If  the  shipper  may  agree  to  a  limitation  of  liability, 
the  person  to  whom  he  entrusts  his  goods  to  deliver  to  the  carrier 
as  his  agent  is  presumed  to  have  authority  so  to  do,  and  even  if 
he  has  no  authority,  but  accepts  the  receipt,  and  the  carrier  does 
not  know  that  he  has  no  authority,  the  owner  is  usually  held 
bound.*  So  if  one  carrier  is  made  the  shipper's  agent  to  deliver  to 


Boston  &c.  R.  Co.,  74  N.  H.  100,  65 
Atl.  386,  124  Am.  St.  937;  Russell  v. 
Erie  R.  Co.,  70  N.  J.  L.  808,  59  Atl. 
150,  67  L.  R.  A.  433,  1  Am.  &  Eng. 
Ann.  Cas.  672;  Willock  v.  Pennsyl- 
vania R.  Co.,  166  Pa.  St.  184,  30  Atl. 
948,  27  L.  R.  A.  228,  45  Am.  St.  674, 
11  Lewis  Am.  R.  &  Corp.  642  and 
note;  Eckert  v.  Pennsylvania  R.  Co., 
211  Pa.  St.  267,  60  Atl.  781,  107  Am. 
St.  571;  New  York  Cent.  R.  Co.  v. 
Lockwood,  17  Wall.  (U.  S.)  357,  21 
L.  ed.  627;  Hontz  v.  Union  Pac.  R. 
Co.,  33  Utah  175,  93  Pac.  439,  17  L. 
R.  A.   (N.  S.)  628. 

'^Mynard  v.  Syracuse  &c.  R.  Co., 
71  N.  Y.  180,  27  Am.  Rep.  28.  In 
the  following  states  a  carrier  may 
contract  with  a  gratuitous  passenger 
against  negligence  of  its  servants: 
Connecticut,  Griswold  v.  New  York 
&  N.  E.  R.  Co.,  53  Conn.  371,  4  Atl. 
261,  55  Am.  Rep.  115;  Louisiana,  Hig- 
gins  V.  New  Orleans  &c.  R.  Co.,  28 
La.  Ann.  133;  Massachusetts,  Quim- 
by  V.  Boston  &  Maine  R.  Co.,  150 
Mass.  365,  23  N.  E.  205,  5  L.  R.  A. 
846,  1  Lewis  Am.  R.  &  Corp.  113; 
New  Jersey,  Kinney  v.  Central  R.  Co., 
32  N.  J.  L.  407,  90  Am.  Dec.  675,  34 
N.  J.  L.  513,  3  Am.  Rep.  265;  Wis- 
consin, Annas  v.  Milwaukee  &c.  R. 
Co.,  67  Wis.  46,  30  N.  W.  282,  58 
Ana.    Rep.    848.     Louisiana,    Massa- 


chusetts and  New  Jersey  follow  the 
general  rule  as  to  carriers  of  goods 
See  cases  cited  in  note  95. 

"Donlon  v.  Southern  Pac.  Co.,  151 
Cal.  763,  91  Pac.  603,  11  L.  R.  A. 
(N.  S.)  811;  Wabash  &c.  R.  Co.  v. 
Brown,  152  111.  484,  39  N.  E.  273; 
Chicago  &  N.  W.  R.  Co.  v.  Calumet 
Farm,  194  111.  9,  61  N.  E._1095,  88 
Am.  St.  68n ;  Lawson  v.  Chicago,  St. 
P.  M.  &  O.  R.  Co.,  64  Wis.  447,  24 
N.  W.  618,  54  Am.  Rep.  634. 

*^  Merchants'  &  Miners'  Transp.  Co. 
V.  Eichberg,  109  Md.  211,  71  Atl.  993, 
130  Am.  St.  524.  The  contrary  was 
held  in  Southern  Pac.  Co.  v.  Phillip- 
son  (Tex.  Civ.  App.),  39  S.  W.  958. 
And  a  contract  that  the  goods  are 
carried  at  the  "owner's  risk"  does 
not  prevent  liability  for  negligence. 
Aaronson  v.  Pennsylvania  R.  Co.,  23 
Misc.  (N.  Y.)  666.  52  N.  Y.  S.  95; 
Nashville  &c.  R.  Co.  v.  Jackson,  6 
Heisk.   (Tenn.)  271. 

**  Illinois  Cent.  R.  Co.  v.  Read,  37 
III.  484,  87  Am.  Dec.  260;  Kenney  v. 
New  York  Cent.  R.  Co.,  125  N.  Y. 
422,  26  N.  E.  626;  jMynard  v.  Syra- 
cuse &c.  R.  Co.,  71  N.  Y.  180,  27 
Am.  Rep.  28. 

^Nelson  v.  Hudson  River  R.  Co., 
48  N.  Y.  498;  California  Powder 
Works  V.  Atlantic  &c.  R.  Co.,  113 
Cal.  329,  45   Pac.  691.  36  L.  R.  A. 


'  LIMITATION   OF   LIABILITY   BY    CONTRACT.  2 1  I 

a  succeeding  carrier,  it  is  such  carrier's  duly  to  accept  reasonable 
limitations  of  liability  by  the  succeeding  carrier,  and  if  it  refuses 
to  accept  these,  and  in  consequence  of  failure  to  ship,  the  goods 
are  injured,  the  first  carrier  is  liable  to  the  owner,"  But  if  a  carrier 
has  notice,  which  may  be  shown  by  circumstances,  that  an  agent 
has  no  authority  to  bind  the  shipper  by  agreeing  to  a  limitation 
of  liability,  the  acceptance  of  a  receipt,  or  signing  of  one  by  such 
agent,  will  not  bind  the  owner,^  but  the  latter  may  ratify  th.e  act  of 
his  agent  in  such  a  way  as  to  be  bound.*  The  consignor  em- 
powered to  ship  goods  has,  it  is  held,  implied  authority  to  make  a 
contract  to  bind  the  consignee.^  Carriers  are  bound  by  the  acts 
of  their  agents  in  so  far  as  they  have  been  held  out  as  having 
authority  within  the  scope  of  their  employment  to  bind  the  car- 
rier.® This  becomes  of  importance  where  the  agent  has  made  a 
contract  which  would  increase  the  liability  of  the  carrier.  So  it 
is  held  that  a  carrier's  clerk  may  contract  that  freight  shall  be 
carried  by  a  particular  boat,'  that  certain  instructions  for  de- 
livery shall  go  wuth  the  goods,^  or  a  station  agent  may  contract 
that  one  in  charge  of  animals  may  ride  in  the  stock  car,^  and  may 
bind  the  company  to  deliver  beyond  its  terminus,  and  within  a 
fixed  time.^° 

§  196.     Construction  of  contracts  limiting   liability. — All 

contracts  limiting  liability  are  construed  strictly  against  the  car- 
rier, and  ambiguities  are  resolved  against  him/^     The  reason  for 

648  and  note.    Cases  cited  in  note  to  'Hutchinson  Carriers   (3d  ed.),  §§ 

Elliott   R.   R.    (2d   ed.),    §    1507.  241,  460. 

'Rawson  v.  Holland,  59  N.  Y.  611,  '  Goddard  v.  Mallory,  52  Barb.  (X. 

17  Am.  Rep.  394.  Y.)    87;    Goodrich   v.   Thompson,  44 

^Buckland  v.  Adams  Exp.   Co.,  97  N.  Y.  324. 

Mass.   124,  93   Am.  Dec.  68;   Russell  *Hutchings  v.  Ladd,  16  Mich.  493. 

V.  Erie  R.  Co.,  70  N.  J.  L.  808,  59  "Lawson   v.   St.    Paul   &c.   R.   Co., 

Atl.   150,  67  L.  R.  A.  433,  1  Am.  &  64  Wis.  447,  24  N.  W.  618,  54  Am. 

Eng.   Ann.    Cas.   672  and  note;   Jen-  Rep.  634. 

nings  V.  Grand  Trunk  R.  Co.,  l27  N.  "Denning  v.  Grand  Trunk  R.  Co.. 

Y.  438,  28  N.   E.   394,   affg.  52  Hun  48    N.    H.    455;    Stron    v.    Detroit    & 

(N.  Y.)   227,  5  N.  Y.  S.  140.  M.  R.  Co.,  23  Wis.  126,  99  Am.  Dec. 

*Gulf    &c.    R.    Co.    V.    Jackson,   99  114;   Hansen  v.  Flint  &c.  R.  Co.,  73 

T^x.  343,  89   S.   W.  968.  Wis.  346,  41  N.  W.  529,  9  Am.   St. 

1/    ''Brown    v    Louisville   &c.    R.    Co.,  791. 

36  111.  App.  140;  Trohlick  v.  Pennsyl-  "Elliott  R.  R.  (2d  ed.).  §  1505  and 

"^atlfa  RV  Co.,  138  Mich.  116,  101   N.  cases  cited;  Hutchinson  Carriers  (3d 

W.   223,    110  Am.    St.  310;   Ryan   v.  ed.),  §  464;  Southern  R.  Co.  v.  Webb. 

Missouri  &c.  R.  Co.,  65  Tex.  13,  57  143  Ala.  304,  39  So.  262,  111  Am.  St. 

Am.  Rep.  589.  45;  Russell  v.  Erie  R.  Co.,  70  N.  J. 


212  BAILMENTS. 

this  is,  that,  as  in  the  case  of  insurance  companies,*^  the  parties 
do  not  contract  upon  an  equahty,  and  the  contract  is  usually  pre- 
pared by  the  carrier  in  advance,  so  in  order  to  escape  any  of  his 
common-law  liability,  he  must  make  the  language  of  the  agree- 
ment unmistakable  to  that  effect.  If  the  contract  contains  spe- 
cific exemptions,  followed  by  more  general  words,  the  general 
words  are  usually  construed  to  embrace  only  things  of  the  same 
kind  as  those  specifically  mentioned/^ 

Among  examples  of  the  construction  of  such  contracts  may  be 
mentioned  the  following :  Where  a  carrier  had  given  two  notices 
as  to  the  terms  of  his  carrying,  he  was  bound  by  the  one  least 
beneficial  to  him.^*  A  contract  providing  that  the  carrier  would 
not  be  liable  for  loss  or  damage  arising  from  causes  incident  to 
railroad  transportation,  nor  from  fire  or  elements,  "while  at 
depots,"  was  held  to  refer  only  to  depots  where  the  cars  might 
stop  in  transit,  and  not  to  the  depot  of  destination,  so  that  the  car- 
rier was  liable  for  the  goods  which  burned  in  the  depot  of  destina- 
tion/' A  clause  in  a  bill  of  lading  exempting  a  ship  from  loss 
occasioned  by  latent  defects  in  the  machinery  or  hull  of  the  vessel, 
not  resulting  from  a  want  of  due  diligence,  did  not  cover  unsea- 
worthiness existing  at  the  time  the  voyage  began,  but  referred 
only  to  unseaworthiness  which  might  arise  in  the  course  of  the 
voyage/®     A  contract  by  the  shipper  of  horses  that  he  would  take 

L.  808,  59  Atl.  150,  Q  L.  R.  A.  433  "  St.    Louis    &    S.    E.    R.    Co.    v. 

and  note,   1  Am.  &  Eng.  Ann.   Cas.  Smuck,  49  Ind.  302;  Edsall  v.  Cam- 

672;    Hoye   v.    Pennsylvania   R.   Co.,  den  &c.  R.  Co.,  50  N.  Y.  661. 

191  N.  Y.  101,  83  N.  E.  586,  17  L.  R.  '=  E.    O.    Stannard    Milling    Co.   v. 

A.  (N.  S.)  641n,  14  Am.  &  Eng.  Ann.  Transit  Co.,   122  Mo.  258,  26  S.  W. 

Cas.  414;  Gwyn  Harper  Mfg.  Co.  v.  704. 

Carolina  Cent.   R.   Co.,   128  N.   Car.  "The  Aggi,  107  Fed.  300,  46  C.  C. 

280,  38   S.   E.   894,  83   Am.   St.  675;  A.  216-,  The  Sandfield,  92  Fed.  663,  34 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Spears,  C.  C.  A.  612;  The  Carib  Prince,  170 

31  Okla.  469,  122  Pac.  228.  U.  S.  655,  42  L.  ed.  1181,  18  Sup.  Ct. 

^  See  Glens  Falls  Ins.  Co.  v.  Mich-  753.    But  the  ship  owner  whose  ves- 

ael,  167   Ind.   659,  74   N.   E.  964,  79  sel  is  unseaworthy  at  the  beginning 

N.  E.  905.  8  L.  R.  A.   (N.  S.)  708.  of  the  voyage  is  liable  only  for  dam- 

"The  G.  R.  Booth,  91  Fed.  164,  ages  caused  by  unseaworthiness,  and 
ZZ  C.  C.  A.  430.  171  U.  S.  450,  43  L.  not  for  damages  caused  by  perils  of 
ed.  234.  19  Sup.  Ct.  9 ;  Hawkins  v.  the  sea  excepted  in  the  contract.  Sea- 
Great  Western  R.  Co.,  17  Mich.  57,  worthiness  is  not  a  condition  prec- 
97  Am.  Dec.  179;  Menzell  v.  Chicago  edent  to  a  contract  of  affreightment. 
&  N.  W.  R.  Co.,  1  Dill.  (U.  S.)  531,  The  Europa  (England  1908).  p.  84. 
Fed.  Cas.  No.  9429;  Texas  &c.  R.  Co.  13  Am.  &  Eng.  Ann.  Cas.  505  and 
V.  Callender,  183  U.  S.  632,  46  L.  ed.  cases  cited  in  note. 
362,  22  Sup.  Ct.  257. 


LIMITATION    OF    LIABILITY    BY    CONTRACT.  213 

all  risks  of  loss,  injury,  damage  or  other  contingencies  in  loading, 
conveyance,  unloading  and  otherwise,  did  not  exempt  the  com- 
pany from  liability  for  injury  occasioned  by  the  bottom  falling 
out  of  a  car,  since  such  was  not  a  risk  incident  to  the  ordinary 
transaction  of  business."  And  where  the  shipper  by  contract 
exempted  the  carrier  from  "any  and  all  damage  that  may  occur  to 
said  goods,  arising  from  leakage  or  decay,  chafing  or  breakage,  or 
from  any  other  cause  not  the  result  of  collision  of  trains,  or  of 
cars  being  thrown  from  the  track  while  in  transit,"  the  company 
was  held  liable  for  the  total  loss  of  the  goods  by  fire,  because  the 
word  "damage"  did  not  include  total  loss.*®  Where  by  ar- 
rangement between  the  parties  the  carrier  was  to  take  cotton  from 
the  platform  of  a  compress  company,  and  give  a  bill  of  lading 
under  which  the  carrier  was  not  liable  for  loss  by  fire  while  the 
cotton  was  in  transit,  or  in  depot  or  place  of  transshipment,  or  on 
landing  at  the  place  of  delivery,  and  the  cotton  was  burned,  with- 
out negligence  of  the  carrier,  while  still  on  the  compress  com- 
pany's platform,  the  carrier  was  held  liable,  since  none  of  the 
words  or  phrases  in  the  exemption  clause  released  liability  while 
the  cotton  was  on  the  platform,  the  court  holding  that,  at  the  time, 
it  was  not  "in  transit,"  since  transportation  had  not  actually 
begun.**  So  a  bill  of  lading  excepting  liability  for  losses  by 
pirates,  robbers  and  dangers  of  the  road,  among  other  exceptions, 
did  not  relieve  the  carrier  when  the  goods  were  stolen  from  a  rail- 
road truck,  for  robbers  are  those  who  take  by  force,  not  stealth, 
and  dangers  of  the  road  are  such  dangers  as  carriages  overturn- 
ing, .resulting  from  the  physical  nature  f  the  roads,  not  theft,  and 
theft  or  larceny  was  not  included  -^monp-  the  exceptions.^*  Where 
the  bill  excepted  liability  for  losses  by  thieves,  and  a  box  of  dia- 
monds was  stolen,  whether  on  the  ship  during  the  voyage  or  on  ar- 
rival in  port  before  delivery  uo^  being  shown,  it  was  held  that  the 
word  "thieves"  in  the  exemption  was  limited,  as  in  policies  of  in- 
surance, to  persons  outside  the  ship,  and  since  from  the  evidence 
the  box  may  have  been  stolen  by  one  on  the  ship,  the  shipowner 

"Hawkins    v.    Great    Western    R.  '^"Amory  Mfg.  Co.  v.  Gulf  &c.  R. 

Co..  17  Mich.  57,  97  Am.  Dec.  179.  Co.,  89  Tex.  419,  11  S.  W.  856,  59 

"Menzel  v.  Chicago  &   N.   W.   R.  Am.  St.  65. 

Co.,  1  Dill.    (U.  S.)   531,  Fed.  Gas.  ~De    Rothschild    v.     Roval    Mail 

No.  9429.  Steam  Packet  Co..  7  Exch.  734. 


214  <  BAILMENTS. 

was  liable.^^  Limitation  of  liability  to  a  certain  amount  for  each 
package  of  goods  does  not  apply  to  bales  of  cotton,  for  they  are 
not  packages  within  the  meaning  of  the  stipulation.^-  And  where 
goods  were  carried  partly  by  rail  and  partly  by  water,  loss  by  fire 
on  land  was  not  within  an  exemption  for  damages  "by  fire  or  col- 
lision on  the  rivers  or  sea."^^  Where  the  contract  was  that  "any 
alteration,  addition  or  erasure  in  the  bill  of  lading  which  shall  be 
made  without  the  special  notation  hereon  of  the  agent  of  the  car- 
rier issuing  the  bill  shall  be  void,"  the  court  held  that  this  clause 
did  not  prevent  fraudulent  alterations  making  the  entire  contract 
void,  in  accordance  with  the  general  rule  of  contracts.^* 

§  197.  Construction  of  exceptions  found  in  bills  of  water 
carriers. — The  exception,  usually  found  in  bills  of  lading 
of  water  carriers,  whether  upon  the  high  seas  or  upon  rivers,  from 
liability  for  losses  caused  by  perils  of  the  sea  or  dangers  of  navi- 
gation, includes  many  perils  not  included  in  the  legal  exception  of 
the  act  of  God,  among  them  many  in  which  human  agency  is  in 
part  responsible,  such  as  collisions,  if  the  carrier  is  not  negligent  _^ffj 
and  has  used  reasonable  skill  and  diligence.^^  A  jettison  niade  "^v-tp^ 
necessary  by  a  tempest,  and  not  by  the  fault  of  the  master  oi  the  '""^^^AA^A 
ship,  is  a  peril  of  the  sea.^®  A  hidden  obstruction  of  recent  origin 
in  a  navigable  stream,  unknown  and  such  that  human  foresight 
cannot  reasonably  guard  against  it,  is  considered  a  peril  of  the 
sea,  or  a  danger  of  navigation.-^  The  waves  made  by  a  steamer 
passing  a  flatboat  are  perils  of  the  river,-^  and  it  is  even  held  that 
the  breaking  of  a  rope  by  which  a  ship  unloading  was  made  to 
cant  and  take  water  is  a  peril  of  the  sea.'^     Among  other  perils 

^*  Taylor  v.  The  Liverpool  &  Great  lett  v.  Ellis,  11  111.  579;  Lawrence  v. 

Western  Steam  Company,  L.  R.  9.  Q.  Minturn,    17   How.    (U.   S.)    100,   15 

B    546  L.  ed.  58;   The  Portsmouth,  9  Wall. 

"Southern   Exp.   Co.  v.   Crook,  44  (U.  S.)  682,  19  L.  ed.  754. 

Ala.  468,  4  Am.  Rep.  140.  ^  Redpath    v.    Vaughan,    52    Barb. 

=^  Little    Rock   &c.    R.    Co.    v.    Tal-  (N.  Y.)  489;  Chouteaux  v.  Leech.  18 

bot,  39  Ark.  523.  Pa.  St.  224.  57  Am.  Dec.  602 ;  John- 

'^ Merchants'    Nat.    Bank   v.   Balti-  son  v.  Friar,  4  Yerg.   (Tenn.)  47,  26 

more    C.    &    R.    Steamboat  Co.,   102  Am.  Dec.  215.                                         | 

Md    573,  63  Atl.  108.  ^Washington    Mutual    Ins.    Co.    v. 

"The   Xantho,   12   App.   Cas.   503;  Reed,  20  Ohio  199. 

Garston  v.  Hickie,  18  Q.  B.  Div.  17.  "*  Laurie  v.  Douglass,  15  M.  &  W. 

*The    Bergenseren,    36    Fed.    700;  746. 
The  Marlborough,  47  Fed.  667;  Gil- 


LIMITATION   OF   LIABILITY   BY   CONTRACT.  2x5 

are  sea  water  entering  through  a  ventilator  hold,  the  ventilator 
having  been  carried  away  by  a  gale,^"  the  drifting  away  by  a  gale 
of  logs  brought  alongside  to  be  loaded,^^  a  stanchion  falling  in 
heavy  weather,"-  cattle  in  a  lighter  becoming  violent  and  drown- 
ing/^ Losses  by  fire  are  not  perils  of  the  sea.^*  Damage  by  sea 
water  is  not,  if  caused  by  unseaworthiness,  the  negligence  of  the 
master  or  crew,  or  ordinary  wear  and  tear,  a  damage  by  a  peril 
of  the  sea,  but  if  caused  by  unusual  stress  of  weather,  it  is.^" 
The  following  have  been  held  not  perils  of  the  sea:  a  rush  of 
water  caused  by  an  explosion  of  blasting  caps,^"  damage  caused 
by  rats  gnawing  a  hole  in  a  water  pipe,  whereby  the  cargo  was 
damaged  by  water,^^  or  injury  caused  to  the  ship  by  worms.^* 

§  198.  Act  of  carrier  which  prevents  taking  advantage 
of  contract  limitations — Deviation  or  departure  from  con- 
tract.— We  have  seen  that  in  most  jurisdictions  the  carrier 
loses  the  benefit  of  contract  exemptions  from  liability  if  the  neg- 
ligence of  himself  or  his  servants  has  caused  injury  to  the  goods.^^ 
Even  where  the  carrier  may  contract  against  negligence,  he  can- 
not contract  against  positive  misfeasance  of  himself  or  his  serv- 
ants, or  conversion  of  the  goods."*"  If  he  departs  from  the  stipu- 
lated method  of  carriage  or  breaks  the  contract  in  any  way,  he  can 
usually  claim  no  benefit  from  contract  exemptions,  but  becomes 
liable  under  the  common  law,  as,  it  has  been  held,  where  a  vessel 
unauthorizedly  deviates  from  her  course,*^  or  the  contract  is  to 

«The  Dunbritton,  IZ  Fed.  352.  19  *'The  G.  R.  Booth,  171  U.  S.  450, 

C.  C.  A.  449.  43  L.  ed.  234,  19  Sup.  Ct.  9. 

'^Munson  S.  S.  Line  v.  Steiger,  132  "The  Euripides,  71  Fed.  728,  18  C. 

Fed.  160,  69  C.  C  A.  492,  affd.  136  C.  A.  226. 

Fed.  T/l.  ''  The  Giles  Loring,  48  Fed.  463. 

^-  The  Exe,  57  Fed.  399,  6  C.  C.  A.  *'  See  cases  cited  under  note  95. 

410.  '"'Chicago  &  S.  E.  R.  Co.  v.  Fifth 

''  Anthony  v.  ^tna  Ins.  Co.,  1  Abb.  Nat.  Bank,  26  Ind.  App.  600,  59  N. 

(U.  S.)  343.  E.   43;   Magnin  v.   Dinsmore,  70  N. 

^  Parsons    v.    Monteath,    13    Barb.  Y.  410,  Id  Am.  Rep.  608. 

(N.  Y.)  353;  Swindler  v.  Hilliard,  2  ^'Thorley  v.  Orchis  Steamship  Co., 

Rich.     (S.    Car.)    286;    Garrison    v.  1  K.  B.  660,  7  Am.  &  Eng.  Ann.  Cas. 

Memphis  Ins.  Co.,  19  How.   (U.  S.)  281  and  note;  Waltham  Mfg.  Co.  v. 

312;  New  Jersey  Steam  Nav.  Co.  v.  New    York   &c.    Steamship   Co.,   204 

Merchants'   Bank,  6  How.    (U.    S.)  Mass.  253,  90  ^.  E.  550.   17  Am.  & 

344.  Eng.   Ann.   Cas.   837  and  note;   Em- 

'^The  Folmina,  212  U.   S.   354.  53  pire  State  Cattle  Co.  v.  Atchison  &c. 

L.  ed.  546,  29  Sup.  Ct.  363,  15  Am.  &  R.  Co.,  210  U.  S.  1,  52  L.  ed.  931.  28 

Eng.  Ann.   Cas.  748  and  note.  Sup.  Ct.  607,  IS  Am.  &  Eng.  Ann.  Cas. 


2l6  BAILMENTS. 

carry  by  rail  entirely,  but  he  carries  partly  by  steamboat/-  or 
sends  goods  by  sea  when  the  agreement  was  to  carry  by  canal/^ 
or  changes  the  goods  to  another  car  when  he  contracted  to  carry 
them  through  without  change,**  or  refuses  to  give  free  transpor- 
tation as  contracted  to  the  attendant  of  live  stock,*^  or  fails  to 
care  for  goods  when  he  has  contracted  to  do  so,*®  or  agrees  to 
send  them  by  passenger  trains,  and  instead  sends  them  by  freight 
trains.*^  Usage  may  be  resorted  to  in  a  proper  case  in  order  to 
explain  the  contract  and  determine  whether  there  has  been  a  de- 
parture.** 

§  199.  When  cormecting  carrier  obtains  benefits  of  con- 
tract made  by  initial  carrier. — If  the  first  carrier  has  con- 
tracted only  to  carry  to  the  terminus  of  his  own  route,  and  de- 
liver to  another  carrier,  the  succeeding  carrier  can  take  no  advan- 
tage of  the  contract  made  by  the  first**  If  the  first  carrier  makes 
a  through,  contract  to  carry  the  goods  to  their  final  destination, 
the  succeeding  carriers  are  usually  entitled  to  the  exemption 
contracted  for  by  the  first.°" 

§  200.  What  law  governs  construction  of  contract  limit- 
ing carrier's  liability. — As  the  general  rule  is  that  the  lex  loci 
contractus  governs  in  the  determination  of  the  rights  of  the 
parties  in  construing  a  contract,  so  the  general  rule  as  to  contracts 
of  carriage  is  that  a  contract  made  in  one  state  and  partly  to  be 
performed  there  is  governed  by  the  law  of  that  state,  unless  there 
is  evidence  to  the  contrary.^^    A  contract  of  carriage  to  be  per- 

70  and  note  (not  an  insurer  if  neces-  v.   Belles,   80   111.  473 ;   Bancroft   v. 

sity  requires  deviation).  Merchants*  Despatch  Transp.  Co.,  47 

"  Maghee  v.  Camden  R.  Co.,  45  N.  Iowa  262,   29  Am.   Rep.   482 ;    Man- 

Y.  514,  6  Am.  Rep.  124.  hattan  Oil  Co.  v.  Camden  R.  Co.,  54 

"Hand  v.  Baynes,  4  Whart  (Pa.)  N.  Y.   197;   Babcock  v.  Lake  Shore 

204,  33  Am.  Dec.  54n.  &c.  R.  Co.,  49  N.  Y.  491. 

*•  Robinson  v.  Merchants'  Despatch        "'  See    cases    cited    in    last   note. 

Transp.  Co.,  45  Iowa  470.  Kansas  City  &c.  R.  Co.  v.  Sharp,  64 

"McKahan  v.  American  Exp.  Co.,  Ark.  115,  40  S.  W.  781;  Western  &c. 

209  Mass.  270,  95  N.  E.  785,  Am.  &  R.  Co.  v.  Cotton  Mills,  81  Ga.  522,  7 

Eng.  Ann.  Cas.  1912B,  612  and  note.  S.  E.  916,  2  L.  R.  A.  102n ;  Robinson 

"Hunnewell    v.    Taber,    Fed.    Cas.  v.  New  York  &c.  Steamship  Co.,  63 

No.  6880,  2  Sprague  Dec.  (U.  S.)  1.  App.  Div.  (N.  Y.)  211,  71  N.  Y.  S. 

"Pavitt  V.  Lehigh  Valley  R.  Co.,  424,  aflfd.   177  N.  Y.  565,  69  N.   E. 

153  Pa.  St.  302,  25  Atl.  1107.  1130;  Maghee  v.  Camden  R.  Co..  45 

**  Robertson  v.  National  Steamship  N.  Y.  514,  6  Am.  Rep.  124. 
Co.,  139  N.  Y.  416,  34  N.  E.  1053.  "Hutchinson     Carriers     (3d     ed.), 

*' Merchants'  Despatch  Transp.  Co.  §  201  et  seq.;  Elliott  R.  R.  (2d  ed.), 


LIMITATION   OF   LIABILITY   BY    CONTRACT. 


217 


formed  entirely  within  one  state  is,  of  course,  governed  wholly 
by  the  law  of  that  state.^"  Matters  relating  to  delivery,, solely, 
are  determined  by  the  law  of  the  state  of  delivery.^^  The  remedy 
is  governed  by  the  law  of  the  forum,  as  the  time  within  which  the 
suit  may  be  brought,  or  the  admissibility  of  evidence.^*  The 
performance  of  a  contract  of  carriage  is  considered  indivisible 
by  the  best  authority.^°  Mr.  Hutchinson  says  that  there  is  a 
presumption  that  the  parties  intended  the  law  to  govern  which 
will  give  validity  to  all  the  provisions  of  the  contract,^*  and  if  such 
would  not  be  done  by  the  lex  loci  contractus,  the  question  becomes 
entirely  one  of  evidence,  and,  as  bearing  upon  it,  it  may  be  shown 
that  the  state  of  the  performance  of  the  contract  is  the  legal  resi- 
dence of  the  parties,^^  that  the  performance  was  to  be  entirely  in 
another  state  from  that  of  the  contracting,^^  that  the  forms  of  the 
contract  were  those  used  in  some  particular  state,^^  or  that  there 
was  a  stipulation  that  the  contract  was  made  with  reference  to  the 


§  1506;  Southern  Exp.  Co.  v.  Hanaw, 
134  Ga.  445,  67  S.  E.  944,  137  Am.  St. 
227 ;  Cleveland,  C.  C.  &  St.  L.  R.  Co. 
V.  Druien,  118  Ky.  237,  80  S.  W.  778, 
26  Ky.  L.  103,  66  L.  R.  A.  275,  4  Am. 
&  Eng.  Ann.  Cas.  1102  and  note; 
Hanson  v.  Great  Northern  R.  Co.,  18 
N.  Dak.  324,  121  N.  W.  7^,  138  Am. 
St.  768;  Hughes  v.  Pennsylvania  R. 
Co.,  202  Pa.  222,  51  Atl.  990,  63  L.  R. 
A.  513,  97  Am.  St.  713;  Gilliland  v. 
Southern  R.  Co.,  85  S.  Car.  26,  67 
S.  E.  20,  137  Am.  St.  861;  Pennsyl- 
vania R.  Co.  V.  Hughes,  191  U.  S. 
477,  48  L.  ed.  269,  24  Sup.  Ct.  132; 
Liverpool  &c.  Steam  Co.  v.  Phenix 
Ins.  Co.,  129  U.  S.  397,  32  L.  ed.  788, 
9  Sup.  Ct.  469;  note  88  Am.  St.  125. 

■"In  re  Missouri  Steamship  Co.,  42 
Ch.  Div.  321,  58  L.  J.  Ch.  (N.  S.) 
721,  61  L.  T.  (N.  S.)  316;  Grand  v. 
Livingston,  4  App.  Div.  (N.  Y.)  584, 
75  N.  Y.  St.  646,  38  N.  Y.  S.  490; 
Brown  v.  Camden  &c.  R.  Co.,  83  Pa. 
St.  316;  Ryan  v.  Missouri  &c.  R.  Co., 
65  Tex.  13,  57  Am.  Rep.  589. 

•^  Southern  Exp.  Co.  v.  Gibbs,  155 
Ala.  303,  46  So.  465,  130  Am.  St.  24; 
Herf  &  Frerichs  Chem.  Co.  v.  Lack- 
awanna Line,  70  Mo.  App.  274,  100 
Mo.  App.  164,  7Z  S.  W.  346;  Springs 
V.  South  Bound  R.  Co.,  46  S.  Car. 
104,  24  S.  E.  166. 

"The    Guildhall,     58    Fed.    796; 


Adams  Exp.  Co.  v.  Walker,  119  Kv. 
121,  26  Ky.  L.  1025,  83  S.  W.  106,  67 
L.  R.  A.  412;  Hoadley  v.  Northern 
Transp.  Co.,  115  Mass.  304,  15  Am. 
Rep.  106. 

^Hutchinson  Carriers  (3d  ed.), 
§  210  and  cases  cited;  Liverpool  & 
G.  W.  Steam  Co.  v.  Phenix  Ins.  Co., 
129  U.  S.  397,  32  L.  ed.  788,  9  Sup. 
Ct.  469. 

''^Hutchinson  Carriers  (3d  ed.), 
§  213;  Talbott  v.  Merchants'  Dis- 
patch Transp.  Co.,  41  Iowa  247,  20 
Am.  Rep.  589;  Hazel  v.  Chicago,  M. 
&  St.  P.  R.  Co.,  82  Iowa  447,  48  N.  W. 
926;  Grand  v.  Livingston,  4  App. 
Div.  (N.  Y.)  584,  38  N.  Y.  S.  490; 
Ryan  v.  M.  K.  &  T.  R.  Co.,  65  Tex. 
13,  57  Am.  Rep.  589.  Contra,  Brock- 
way  V.  American  Exp.  Co.,  171  Mass. 
158.  50  N.  E.  626. 

"Herf  &  Frerichs  Chem.  Co.  v. 
Lackawanna  Line,  70  Mo.  App.  274, 
100  Mo.  App.  164,  7Z  S.  W.  346; 
Grand  v.  Livingston,  4  App.  Div.  (N. 
Y.)  584,  38  N.  Y.  S.  490;  Liverpool 
&  G.  W.  Steam  Co.  v.  Phenix  Ins. 
Co.,  129  U.  S.  397,  32  L.  ed.  788,  9 
Sup.  Ct.  469. 

"*  See  cases  cited  in  note  52,  §  200. 

"In  re  Missouri  Steamship  Co.,  L. 
R.  42  Ch.  Div.  321.  58  L.  J.  Ch.  (N. 
S.)  721,  61  L.  J.  (N.  S.)  316. 


2l8  BAILMENTS. 

law  of  a  certain  state.^°  The  general  rule  is  that  a  court  will  en- 
force a  limitation  in  a  contract  which  is  valid  in  another  state 
if  the  contract  is  to  be  considered  as  governed  by  the  laws  of 
such  other  state,  though  it  is  not  valid  in  the  state  of  the  forum,^^ 
unless  it  be  contrary  to  public  policy  in  the  state  of  the  forum.*'" 
If  a  foreign  law  is  relied  upon,  proof  of  it  must  be  made,  or  the 
matter  will  be  decided  in  conformity  with  the  law  of  the  state  of 
the  forum.*'" 

§  201.     Consideration  for  contract  limiting  liability. — As 

any  contract  must  be  supported  by  a  sufficient  consideration,  so 
contracts  limiting  the  liability  of  carriers  cannot  be  supported 
without  a  good  or  valuable  consideration.  It  is  obvious  that 
the  carrier  receives  a  consideration  in  the  lessening  of  his  risk. 
It  is  not  so  easily  seen  what  is  the  consideration  to  the  shipper, 
since  a  carrier  is  compelled  to  carry  without  limitation  of  liabil- 
ity upon  demand  and  tender  of  compensation.*'*  It  is  said 
that  the  presumption  of  law  is  that  the  compensation  of  the  car- 
rier has  been  reduced  in  consideration  of  the  reduced  liability, 
and  it  will  take  clear  and  satisfactory  evidence  to  show  that  no 

'"Hutchinson     Carriers     (3d    ed.),  *^ Southern  Exp.  Co.  v.  Hanaw,  134 

§  214.  Ga.  445,  67   S.   E.  944,   137  Am.   St. 

*'See     Elliott     R.     R.     (2d     ed.),  227;   Hanson   v.   Great   Northern   R. 

§    1494;   Thomas   v.   Wabash  &c.   R.  Co.,  18  N.  Dak.  324,   121  N.  W.  78, 

Co.,  63  Fed.  200,  affd.  71  Fed.  481,  138  Am.   St.   768;   note  88   Am.    St. 

19  C.  C.  A.  88;  Hazel  v.  Chicago,  M.  128;  Hughes  v.  Pennsylvania  R.  Co., 

&  St.  P.  R.  Co.,  82  Iowa  477,  48  N.  202  Pa.  222,  51  Atl.  990,  91  Am.  St. 

W.  926;  Tecumseh  Mills  v.  Louisville  713. 

&c.   R.   Co.,   108  Ky.  572,  22  Ky.   L.  "^Pierce  v.   Southern   Pac.  R.  Co., 

264,  57   S.   W.  9,  49  L.   R.  A.  557 ;  120  Cal.  156,  47  Pac.  874,  52  Pac.  302, 

O'Regan    v.    Cunard    Steamship    Co.,  40  L.  R.  A.  350;  Palmer  v.  Atchison 

160  Mass.  356,  35  N.  E.  1070,  39  Am.  &c.  R.  Co.,  101  Cal.  187,  35  Pac.  630; 

St.  484;  note  63  L.  R.  A.  513.     The  Meuer  v.   Chicago,   M.   &   St.   P.   R. 

federal  courts  treat  the  question  as  Co.,  5  S.  Dak.  568,  59  N.  W.  945,  25 

one  of  general  commercial  law,  and  L.   R.  A.  81,  49  Am.   St.  898,    11   S. 

decide    matters    connected    with    the  Dak.  94,  75  N.  W.  823,  74  Am.   St. 

limitation  of   carriers'   liability  with-  774. 

out  regard  to  the  law  of  particular  ®*  See  cases  cited  under  first  note  8, 

states.     New   York   Cent.   R.   Co.   v.  this  chapter.    A  recent  United  States 

Lockwood,  17  Wall.    (U.  S.)  357,  21  case  holds  that   if   the  stipulation  is 

L.  ed.  627;  Hart  v.  Pennsylvania  R.  just  and  reasonable,  there  is  no  ne- 

Co.,   112  U.   S.  331,  28  L.  ed.  717,  5  cessity   for  an   aUernative   choice  or 

Sup.  Ct.  151 ;  Liverpool  &c.  Steam  Co.  independent    consideration.       Arthur 

V.  Phenix  Ins.  Co.,  129  U.  S.  397.  32  v.  Texas  &  P.  R.  Co..  139  Fed.  127, 

L.  ed.  788,  9  Sup.  Ct.  469.     But  thev  71  C.  C.  A.  391,  revd.  204  U.  S.  505. 

will  apply  a  state  statute.    Central  of  51  L.  ed.  590.  21  Sup.  Ct.  338.  A  bill  of 

Georgia    R.    Co.    v.    Kavanaugh,    92  lading    limiting    a    carrier's    liability 

Fed.  56,  34  C.  C^  A.  203.  does  not  apply  to  damages  already 


LIMITATION    OF    LIABILITY   BY    CONTRACT. 


/- 


reduced  rate  was  given,^"'  but  when  it  is  satisfactorily  shown  that 
the  rate  was  the  same  as  for  shipments  made  under  full  liability, 
then,  since  there  would  seem  to  be  no  consideration  and  the  limita- 
tion would  be  uncn forcible,  some  courts  take  the  view  that  unless 
it  is  shown  that  a  reduced  rate  was  allowed,  the  contract 
limiting  liability  must  fail  for  want  of  consideration.®*'  A  recital 
m  the  contract  that  the  rate  is  reduced  is  not  conclusive,''^  and  the 
Minnesota  Supreme  Court  has  held  that  if  the  shipment  is  for  in- 
terstate carriage,  where  rebates  are  prohibited,  no  rebate  could  be 
presumed,  and  the  carrier  was  fully  liable,  in  spite  of  the  limita- 
tions of  the  contract.®^ 


accrued,  unless  there  is  a  separate 
consideration  therefor.  St.  Louis,  I. 
M.  &  S.  R.  Co.  V.  Jones,  93  Ark.  537, 
125  S.  W.  1025,  137  Am.  St.  99. 

'^  Elliott  R.  R.  (2d  ed.),  §  1504; 
McMillan  v.  Michigan  S.  R.  Co.,  16 
Mich.  79,  93  Am.  Dec.  208;  York 
Mfg.  Co.  V.  Illinois  Cent.  R.  C,  3 
Wall.  (U.  S.)  107,  18  L.  ed.  170; 
Courteen  v.  Kanawha  Dispatch  Co., 
110  Wis.  610,  86  N.  W.  176,  55  L.  R. 
A.  182. 

"Kellerman  v.  Kansas  City  &c.  R. 
Co.,   136  Mo.   177,  34  S.  W.  41,  3? 


S.  W.  828;  Phoenix  Powder  Mfg.  Co. 
V.  Wabash  R.  Co.,  196  Mo.  663,  94 
S.  W.  235. 

*"St.  Louis,  L  M.  &  S.  R.  Co.  v. 
Weakly,  50  Ark.  397,  8  S.  W.  134,  7 
Am.  St.  104 ;  Lake  Erie  &  W.  R.  Co. 
V.  Holland,  162  Ind.  406,  69  N.  E. 
138,  63  L.  R.  A.  948;  Wehmann  v. 
Minneapolis  &c.  R.  Co.,  58  Minn.  22, 
59  N.  W.  546,  61  Am.  &  Eng.  R. 
Cas.  273. 

^^Wehrnam  v.  Minneapolis  &c.  R. 
Co.,  58  Minn.  22.  59  N.  W.  546,  61 
Am.  &  Eng.  R.  Cas.  273. 


CHAPTER  XIII. 


THE    CARRIER  S    RIGHTS. 


202.  Compensation.  §  215. 

203.  On   what   goods    entitled    to 

freight. 

204.  Amount  of  compensation.  216. 

205.  Shipper's    rights    if    charges 

unreasonable.  217. 

206.  Carrier's    rights    in    case    of 

fraud  by  shipper.  218. 

207.  Who  must  pay  the  freight.  219. 

208.  Method  of  calculating  com- 

pensation. 220. 

209.  Freight  pro  rata   itineris. 

210.  Method    of    calculating 

freight  pro  rata  itineri».  221. 

211.  Transhipment  at  rate  differ- 

ent     from      original      rate         222. 
agreed  upon.  223. 

212.  When   carrier's  right  to  sue         224. 

accrues. 

213.  Demurrage.  _  225. 

214.  Construction       of       special         226. 

clauses   in  demurrage  con- 
tracts. 


Demurrage  where  contract 
is  silent  as  to  time  of  un- 
loading. 

Cesser  clause  and  lien  for  de- 
murrage. 

Demurrage  as  applied  to 
railroads. 

Charges  for  special  services. 

Discrimination  in  freight 
charges. 

Carrier's  special  property  in 
goods,  and  general  rights 
as  bailee. 

When  subrogated  to  owner's 
rights. 

Right  to  insure. 

Authority  to  sell. 

Right  to  know  character  of 
goods  offered  for  carriage. 

Shipper's    failure   to   deliver. 

The  carrier's  lien. 


§  202.  Compensation. — ^The  carrier  has  a  right  to  reason- 
able compensation  for  the  sen'ices  performed  in  the  carriage  of 
the  goods,  and  for  the  risk  assumed  in  so  doing,  and  this  is  one 
manner  in  which  he  is  distinguished  from  a  gratuitous  bailee. 
He  may  demand  payment  of  a  reasonable  compensation  in  ad- 
vance before  accepting  the  goods;  if  he  does  not,  he  may,  after 
the  carriage  is  performed,  recover  the  agreed  amount,  or,  in  the 
absence  of  agreement,  a  reasonable  amount.  The  party  liable 
for  the   freight  charges  may,   however,   if   sued,   set   off   loss 


'  Little  Rock  &c.  R.  Co.  v.  St.  Louis 
&c.  R.  Co.,  63  Fed.  775,  11  C.  C.  A. 
417  26  L.  R.  A.  192;  Randall  v.  Rich- 
mond &  D.  R.  Co.,  108  N.  Car.  612, 
13  S.  E.  137,  49  Am.  &  Eng.  R.  Cas. 
74;  Knight  v.  Providence  &  Worces- 
ter R.  Co.,  13  R.  I.  572,  43  Am.  Rep. 


46,  9  Am.  &  Eng.  R.  Cas.  90.  The 
right  may  be  waived  by  accepting 
goods  without  exacting  payment  in 
advance.  Gratiot  St.  Warehouse  Co. 
V.  Missouri  K.  &  T.  R.  Co.,  124  Mo 
App.  11,  102  S.  W.  11. 


220 


THE    CARRIERS   RIGHTS.  221 

or  damages  to  the  goods,  or  loss  caused  by  delay  or  deviation.- 
If  the  damages  exceed  the  amount  of  freight,  the  consignee  may 
rightfully  demand  delivery  without  payment  of  freight,  and 
refusal  to  surrender  possession  is  conversion." 

§  203.  On  what  goods  entitled  to  freight. — The  general 
rule  is  that  the  carrier  is  entitled  to  freight  only  on  the  goods 
delivered,  in  the  absence  of  an  express  contract  to  the  contrary, 
or  a  contract  for  the  payment  of  a  lump  sum.*  If  part  of 
the  goods  have  been  lost  from  causes  from  which  he  is  exempt 
from  liability  for  loss,  either  tmder  the  common  law  or  by 
special  contract,  he  is  generally  entitled  to  freight  upon  those 
delivered,  but  not  upon  those  lost^  But  if  the  owner  has  pre- 
vented the  completion  of  the  contract  of  transportation,  the  car- 
rier is  entitled  to  full  freight,  if  not  in  fault,  and  able  and  willing 
to  complete  the  contract.^  The  act  of  God  in  delaying  the  jour- 
ney does  not,  it  seems,  justify  the  owner  in  terminating  the 
contract  of  carriage.^  If  the  goods  have  been  damaged  from 
internal  decay,  perils  of  the  sea,  or  other  causes  of  loss  for 
which  the  carrier  is  not  responsible,  he  is  entitled  to  full  freight, 
if  he  delivers  them,  or  if  the  owner  receives  them  before  the 
journey  is  completed.^ 

=  Elliott    R.    R.    (2d   ed.),   §    1558;  S.   E.   288;    The  Brig   Collenberg,    1 

Missouri    Pac.    R.    Co.    v.    Peru- Van  Black.   (U.  S.)   170,  17  L.  ed.  89. 

Zandt  Implement  Co.,  73  Kans.  295.  *  See  cases  cited  ante,  note  4. 

85  Pac.  408.  87  Pac.  80,  6  L.  R.  A.  "'Gage  v.   Maryland   Coal   Co.,   124 

(N.    S.)    1058n,    117   Am.    St.   468,   9  Mass.   442;    Braithwaite  v.   Power,   1 

Am.  &  Eng.  Ann.  Cas.  790  and  note;  N.  Dak.  455,  48  N.  W.  354;  The  Ga- 

Hill  V.  Leadbetter,  42  Maine  572,  66  zelle,  128  U.  S.  474,  32  L.  ed.  496,  9 

Am.  Dec.  305 ;  Gleadell  v.  Thompson,  Sup.  Ct.  139. 

56  N.  Y.  194.  'Wood  v.   Hubbard,  62  Fed.   753, 

'  Missouri  Pac.  R.  Co.  v.  Peru-Van  10  C.  C.  A.  623. 

Zandt  Co..  73  Kans.  295,  85  Pac.  408,  *  McGaw  v.  Ocean  Ins.  Co.,  23  Pick. 

87  Pac.  80,  6  L.  R.  A.  (N.  S.)  1058n,  (Mass.)  405;  Griswold  v.  New  York 

117  Am.  St.  468,  9  Am.  &  Eng.  Ann.  Ins.  Co.,  3  Johns.  (N.  Y.)  321,  3  Am. 

Cas.  790  and  note.    Contra,  Willensky  Dec.    490;     Steelman    v.    Taylor,    3 

V.  Central  of  Ga.  R.  Co.,  136  Ga.  889,  Ware    (U.    S.)    52,    Fed.    Cas.    No. 

72  S.  E.  418,  Ann.  Cas.   1912D.  271,  13349.   Compare  Missouri  Pac.  R.  Co. 

and  see  note.  v.    Peru-Van    Zandt    Implement    Co., 

*  The  Tangier,  32  Fed.  230 ;  Gibson  73  Kans.  295,   85    Pac.   408.   87   Pac. 

V.    Brown.   44   Fed.   98;    New    York  80,  6  L.  R.  A.   (N.  S.)   1058,  87  Am. 

Cent.  &  H.  R.  R.  Co.  v.  Standard  Oil  St.  468.  9  Am.  &  Eng.  Ann.  Cas.  790 

Co.,  87  N.  Y.  486;  Cottrell  v.  Caro-  and  note, 
lina  &c.  R.  Co.,  141  N.  Car.  383.  54 


222  BAILMENTS. 

§  204.  Amount  of  compensation. — This  may  be  regulated 
by  statute,''  or  depend  upon  usage/"  or  be  governed  by  contract 
between  the  parties,"  but  if  not  determined  by  the  statutory  rate, 
or  the  customary  rate,  or  the  contract  rate,  the  carrier  is  entitled 
to  receive  a  reasonable  compensation,  the  amount  of  which  is 
a  question  of  fact.^'  In  but  few  cases,  however,  is  it  necessary 
to  settle  this  question,  since  the  rate  is  ordinarily  fixed  in  one  of 
the  three  ways  first  mentioned. 

§  205.     Shipper's  rights  if  charges  unreasonable. — If  the 

shipper  believes  the  charge  unreasonable,  he  may  tender  what  he 
believes  to  be  a  reasonable  amount,  and,  if  this  is  not  accepted,  sue 
the  carrier  for  refusal  to  carry,^'  or  if  the  goods  have  been  car- 
ried, he  may  tender  what  he  believes  a  reasonable  amount, 
and  sue  to  recover  the  goods  if  this  is  refused.^*  A  more  com- 
mon method  is  to  pay  the  charges,  under  protest  that  they  are 
unreasonable,  and  thus  having  recovered  the  goods,  to  bring  an 
action  to  recover  the  money  illegally  demanded  and  paid,  as  paid 
under  compulsion.^^ 

§  206.  Carrier's  rights  in  case  of  fraud  by  shipper. — If 
the  shipper,  by  fraud,  falsely  represents  to  the  carrier  that  the 
goods  are  of  a  class  which  are  carried  at  a  lower  rate,  and  the 
carrier  without  notice  accepts  them,  the  carrier  may,  upon  discov- 
ering before  delivering  the  goods  that  they  are  of  a  class  upon 
which  a  higher  rate  should  have  been  paid,  charge  the  excess 

'Hutchinson     Carriers     (3d     ed.),  interstate    commerce   commission    of 

§  574.  a  rate  determines  that  it  is  not  un- 

^^  London  &c.   R.   Co.  v.   Evershed,  reasonable     as     against     a     shipper 

L.  R.  3  App.   Cas.   1029;   Killmer  v.  suing  to  recover  unreasonable  freight 

New  York  Cent.  &  H.  R.  R.  Co.,  100  charges    on    an    interstate    shipment. 

N.  Y.  395,  3  N.  E   594,  53  Am.  Rep.  Texas  &  Pac.  R.  Co.  v.  Abilene  Cot- 

194.  ton  Oil  Co.,  204  U.  S.  426,  51  L.  ed. 

"Blackshere  v.   Patterson,  12  Fed.  553,  27  Sup.  Ct.  350,  9  Am.  &  Eng. 

204,   18   C    C.  A.   508.  Ann.  Cas.   1075. 

"London  &c.   R.   Co.  v.   Evershed,         "Hutchinson     Carriers     (3d     ed.), 

L.    R.   3   App.    Cas.    1029;    Louisville  §  805. 

&c    Consolidated   R.   Co.   v.   Wilson,        "=^ Elliott   R.   R.    (2d   ed.),   §    1564; 

119  Ind.  352,  21  N.  E.  341,  132  Ind.  Chicago.  St.  L    &  P.  R.  Co.  v.  Wol- 

517,  32  N.  E.  311,  4  L.  R.  A.  244n,  18  cott,   141  Tnd.  267,  39  N.  E.  451,  SO 

Lv  R.  A.  105.  Am.  St.  320 :  Harmonv  v.  Bineham.  12 

"Hutchinson     Carriers     (3d     ed.),  N.  Y.  99,  62  Am.  Dec.  142;  Clegg  v. 

§  805 :  Carr  v.  Lancashire  &c.  R.  Co.,  Southern  R.  Co.,  135  N.  Car.  148,  47 

7  Exch.  707.    The  acceptance  by  the  S.  E.  667,  65  L.  R.  A.  717. 


TjjE  carrier's  rights.  223 

against  the  goods.^*"'  If  no  inquiry  is  made  concerning  the  char- 
acter of  the  goods,  and  no  misrepresentations  are  made,  or  if  by 
mistake  the  carrier  agrees  to  carry  at  a  lower  rate,  and  the  ship- 
per accepts  without  notice,  the  carrier  would  be  bound  to  carry  at 
the  agreed  rate,  and  cannot  exact  more  before  delivery,  in  the 
absence  of  any  governing  provision  in  the  Interstate  Commerce 
Act,  or  state  statute.^^ 

§  207.  Who  must  pay  the  freight. — The  consignee  is  pre- 
sumptively the  owner  of  the  goods,  and  prima  facie  liable  for 
the  freight,  and,  if  he  accepts,  he  is  under  an  implied  promise  by 
law  to  pay.^*  If  he  does  not  accept  the  goods,  the  fact  that  he  is 
named  as  consignee  does  not  necessarily  make  him  liable. ^^  If 
the  consignee  indorses  the  bill  of  lading,  and  assigns  it  before 
delivery  of  the  goods,  it  seems  that  the  assignee  is  primarily 
liable  for  the  freight,*"  and  that  the  consignee  could  be  held  only 
if  the  indorsee  received  them  as  his  agent.'^  If  it  is  shown  that 
the  carrier  knew  that  the  consignee  was  merely  the  agent  of  the 
shipper,  he  does  not  assume  an  implied  contract  to  pay  freight  by 
receiving  the  goods,  and  only  the  consignor,  if  the  owner  of  the 
goods,  is  liable.'^  So,  if  goods  are  consigned  to  the  care  of  one 
person  for  another,  he  does  not  ordinarily  become  liable  for 
freight  by  receiving  the  goods.^^  The  shipper  is  bound  for  the 
freight  as  soon  as  the  goods  have  been  delivered  and  accepted 
by  the  carrier  for  carriage,  and  the  consignee  may  be  deemed 

"Illinois  Cent.  R.  Co.  v.  Seitz,  214  Union    Freight   R.    Co.    v.    Winkley, 

111.  350,  12,  N.  E.  585,  105  Am.  St.  108.  159  Mass.   133,  34  N.  E.  91,  38  Am. 

"Central    of    Georgia    R.    Co.    v.  St.  398,  55  Am.  &  Eng.  R.  Cas.  695. 

Gortatowsky,    123   Ga,  366,  51    S.   E.  "Coleman  v.  Lambert,  5  M.  &  W. 

469;  Illinois  Cent.  R.  Co.  v.  Seitz,  214  502;   Central  R.   Co.  of  New  Jersev 

111.  350,  12,  N.  E.  585,   105   Am.   St.  v.   MacCartney,  68  N.   J.   L.   165,  52 

108;  United  States  Exp.  Co.  v.  Koer-  Atl.  575;  Hinsdell  v.  Weed,  5  Denio 

ner,  65  Minn.  540,  68  N.  W.  181,  ZZ  (N.  Y.)    172. 

L.  R.  A.  600 ;  Baldwin  v.  Liverpool  ""  Cock  v.  Taylor,  13  East  399. 

&c.  Steamship  Co.,  11   Hun    (N.  Y.)  ""Tobin  v.   Crawford,   5   M.   &  W. 

496,  affd.  74  N.  Y.  125,  30  Am.  Rep.  234. 

277;  Borden  v.  Richmond  &c.  R.  Co.,  '*Amos  v.  Temperlev,  8  M.  &  W. 
113  N.  Car.  570,  18  S.  E.  392,  21  Am.  798;  Boston  &  M.  R.  Co.  v.  Whitcher, 
St.  632.  See  Fine  v.  Southern  Exp,  1  Allen  (Mass.)  497;  El  well  v.  Skid- 
Co.   (Ga.  App.),  12  S.  E.  35.  dy.  11  N.  Y.  282;  Sheets  v.  Wilcrus,  56 

"Wegener  v.  Smith,  15  C.  B.  285;  Barb.  (N.  Y.)  662;  Spencer  v.  White. 

North    German    Lloyd    v.    Heule,    44  1  Tred.  L.  (N.  Car.)  22(i. 

Fed.  100,  10  L.  R.  A.  814:  Davison  "Amos  v.  Temperley,  8  M.  &  W. 

V.  City  Bank,  57  N.  Y.  81.     But  see  798. 


224  BAILMENTS. 

merely  the  shipper's  agent  to  pay  the  freight,  to  the  carrier,  and 
the  carrier's  remedy  against  the  consignee  is  not  exclusive,  but  he 
has  also  recourse  against  the  shipper^*  even  if  the  bill  of  lading 
contains  the  clause  "he  (consignee)  paying  the  freight,"  unless  he 
has  lost  this  right  by  making  a  new  contract  with  the  consignee,  as 
by  extending  the  time  for  payment,  or  accepting  a  promissory 
note.'^ 

§  208.  Method  of  calculating  compensation. — If  freight  is 
to  be  paid  according  to  the  bulk  of  the  goods,  and  the  bulk  or 
weight  increases  during  the  voyage,  it  is  held  that  the  measure- 
ment of  the  bulk  at  the  time  of  shipment  and  not  at  the  time  of  de- 
livery is  that  upon  which  the  carrier's  compensation  is  to  be  com- 
puted. This  has  been  held  where  wheat  expanded  by  heat,^®  or 
where  cotton  bales  expanded  in  the  ship's  hold,^^  and  when  the 
freight  was  to  be  computed  by  weight"^  or  upon  the  number  of 
bushels.^^  The  general  rule  is  that  freight  is  calculated  upon  the 
quantity  of  goods  shipped,  carried  and  delivered,  and  that  all 
these  conditions  must  concur,  so  if  the  goods  decrease  in  quantity, 
the  carrier  can  recover  only  freight  upon  the  quantity  delivered. 
Since  he  is  not  allowed  to  gain  either  by  increase  or  decrease  of 
bulk  or  weight,  he  may  contract  against  loss  from  decrease  by 
natural  causes.^" 

§  209.  Freight  pro  rata  itineris. — The  general  rule  is  that 
the  carrier,  in  order  to  receive  his  compensation,  must  deliver  the 
goods  to  the  consignee  at  the  original  destination,  or  the  owner 
must  have  prevented  such  delivery  by  reclaiming  the  goods  before 
such  delivery,  in  either  of  which  cases  the  carrier  is  entitled  to 
full  freight  for  the  entire  distance.^^  Where  the  carrier  is  pre- 
vented by  disaster  or  otherwise  from  proceeding  upon  his  jour- 
ney, we  have  seen  that  it  may  become  his  duty  to  forward  the 

^  Great  Western  R.  Co.  v.  Bagge  &  323 ;  Buckle  v.  Knoop,  2  L.  R.  Exch.| 

Co..  L.  R.  15  Q.  B.  Div,  625,  23  Am.  124,  333.                                                  ' 

&  Eng.  R.  Cas.  715;  Portland  Flour-  =' Nine   Thousand   &c.    Dry   Hides,' 

ing  Mills  V.  British  Ins.  Co.,  130  Fed.  6  Ben.  (U.  S.)  199.                                1 

860.  65  C.  C.  A.  344;  Central  R.  Co.  "'Allen  v.  Bates,   1   Hilt.    (N.   Y.^ 

V.   MacCartney,  68  N.   J.  L.   165,  52  221. 

Atl.  575  ""  Hutchinson     Carriers     (3d     ed.), 

^  Strong  V.  Hart,  6  B.   &  C.   160 ;  §  813. 

Taplev  V.  Martens,  8  T.  R.  451.  "  See  cases  cited  ante,  notes  1  and 

='  Gibson  v.  Sturge.  10  Exch.  622.  6. 

="  Strand  v.  Grant,  15  C  B.  (N.  S.) 


THE    CARRIER  S    RTGTTTS. 


225 


goods  by  another  carrier,"  and  if  they  arrive  within  a  reasonable 
time,  he  is  entitled  to  full  freight.^^  But  he  and  the  owner  may 
agree  that  the  goods  shall  be  redelivered  to  the  owner,  at  the 
place  where  the  carrier  has  already  transported  them,  and  if  the 
owner  voluntarily  takes  the  goods  back  at  such  place,  an  agree- 
ment is  implied  to  pay  the  carrier  a  proportionate  part  of  the 
entire  charges,  or,  as  it  is  termed,  freight  pro  rata  itineris.^*  The 
acceptance  must  be  voluntary  by  the  owner,  and  must  arise  from 
a  desire  to  take  back  the  goods,  and  not  merely  because  the  cir- 
cumstances make  it  necessary  for  him  to  take  them  rather  than 
lose  them,^^  and  whether  the  acceptance  was  voluntarv^  made  as 
a  result  of  choice,  is  to  be  determined  by  the  circumstances  and 
conduct  of  the  parties  if  there  is  no  express  agreement. ""^  If  the 
carrier's  vehicle  has  been  so  damaged  that  he  cannot  fulfil  his 
contract,  and  he  refuses  to  repair,  to  send  the  goods  by  another, 
or  to  get  another  vehicle,  no  choice  is  present  to  the  owner,  and  an 
acceptance  by  him  is  not  considered  voluntary  unless  there  is 
an  express  agreement.  If,  however,  the  carrier  was  able  and  will- 
ing to  send  the  goods,  or  to  complete  the  journey  after  repairs, 
or  if  the  owner  would  gain  in  any  way  by  accepting  the  goods  at 
the  intermediate  point,  there  would  be  strong  evidence  of  choice.^' 
An  agent  may  accept  for  the  owner.^^  If  the  goods  have  been 
sold  without  consulting  with  the  owner,  although  the  owner  has 
accepted  the  proceeds,  this  is  not  the  same  as  accepting  the  goods, 
and  he  is  not  estopped  from  denying  the  claim  for  freight,  and  if 
the  sale  was  made  without  authority,  the  carrier  is  not  entitled  to 
any  claim  for  freight.^**    The  same  rule  has  been  applied  when 

®' See  cases  cited  in  note  83,  §  163.  waite  v.   Power,   I   N.   Dak.  455,   48 

^'Hutchinson     Carriers     (3d     ed.),  N.  W.  354;  Crawford  v.  Williams,  1 

§  814.  Sneed   (Tenn.)  205,  60  Am.  Dec.  146 

'*  Elliott   R.   R.    (2d   ed.),    §    1562;  and  note.  _ 

Hutchinson  Carriers  (3d  ed.).  §  814;  ^"Hutchinson    Carriers     (3d     ed.), 

Parsons  v.  Hardy,  14  Wend.  (N.  Y.)  §  816;  Gray  v.  Wain,  2  S.  &  R.  (Pa.) 

215,  28  Am.  Dec.  521 ;  note  to  Craw-  229,  7  Am.  Dec.  642. 

ford  V.  Williams,  60  Am.   Dec.    146,  ^'Hutchinson     Carriers     (3d    ed.), 

153;  Barrel!  v.  Propeller  Mohawk,  8  §  816. 

Wall.  (U.  S.)  153.  19  L.  ed.  406.  '"Smyth   v.  Wright,    15   Barb.    (N. 

''McGaw    V.    Ocean    Ins.    Co.,    23  Y.)  51 ;  Barrell  v.  Propeller  Mohawk, 

Pick.    (Mass.)   405;  Western  Transp.  8  Wall.  (U.  S.)  153,  19  L.  ed.  406. 

Co.  V.   Hoyt,   69  N.   Y.  230,  25   Am.  ''Hunter  v.   Prinsep,   10   East  37f^: 

Rep.    175 ;    Welch    v.    Hicks,   6    Cow.  Escopmiche  v.  Stewart,  2  Conn.  3*^1  ; 

(N.  Y.)  504,  16  Am.  Dec.  443;  Braith-  Penover  v.  Hollett,  15  Johns.  (N.  Y.) 

332,  "8   Am.   Dec.   239;    Armroyd   v. 

Bailments — 15 


226  BAILMENTS. 

there  was  an  authority  to  sell,  as  when  the  ship  was  disabled  there 
was  not  any  prospect  of  being  able  to  forward  the  goods,  which 
were  perishable,  and  sale  was  necessary  to  preserve  them.*" 
When  a  contract  of  carriage  has  not  yet  been  completed,  and  war 
arises  between  the  carrier's  nation  and  the  nation  to  which  the 
goods  are  to  be  carried,  the  carrier  may  decline  to  complete  the 
voyage,  if  such  would  subject  the  goods  to  risk  of  capture,  and 
may  recover  pro  rata  freight  if  the  service  performed  has  been 
of  value  to  the  shipper.*^ 

§  210.  Method  of  calculating  freight  pro  rata  itineris. — 
The  rule  followed  in  this  country  for  adjusting  pro  rata  freight 
is  to  allow  in  proportion  to  the  amount  of  the  journey  completed 
at  the  place  where  the  owner  accepts  the  goods,*^  and  does  not  de- 
pend on  the  question  of  the  amount  of  benefit  received  by  the  ship- 
per.*^ Where  the  carrier  is  compelled  from  necessity  to  reship  the 
goods  by  another  carrier,  he  may  pay  any  price  for  the  carriage 
that  may  be  necessary  under  the  circumstances  and  seems  proper 
to  him  to  pay.  The  shipper,  it  is  held,  will  be  bound  to  the  second 
carrier  for  the  freight  in  excess  of  that  originally  contracted  to 
be  paid,  and  the  second  carrier  will  have  a  lien  upon  the  goods  for 
his  charges,**  but  neither  shipper  nor  goods  would  be  liable  for 
both  the  excess  and  the  original  contract  price,  and  if  the  freight 
for  completing  is  less  than  the  original  contract-price  for  the 
entire  journey,  the  shipper  must  pay  the  first  carrier  the  differ- 
ence; if  the  second  carrier's  price  is  greater  than  the  original 
price,  the  shipper  must  pay  him,  but  the  first  carrier  gets  noth- 
ing." 

Union  Ins.  Co.,  3  Binn.  (Pa.)  437;  v.  Wright,  15  Barb.  (N.  Y.)  51;  Rob- 

Callender    v.    Insurance    Co.    of    N.  inson   v.    Marine   Ins.   Co.,  2  Johns. 

America,    5    Binn.    (Pa.)    525;  Caze  (N.  Y.)  323;  Barrell  v.  Propeller  Mo- 

V.  Baltimore  Ins.  Co.,  7  Cranch.  (U.  hawk,  8  Wall.  (U.  S.)   153,  19  L.  ed. 

S.)  358,  3  L.  ed.  370;  Columbian  Ins.  406. 

Co.   V.   Catlett,    12   Wheat.    (U.    S.)  ^^  Coffin  v.   Storer,  5   Mass.  252,  4 

383,  6  L.  ed.  664.  Am.  Dec.  54. 

'"Vlierboom  v.  Chapman,  13  M.  &  "  Searle   v.    Scovell,    4   Johns.    Ch. 

W.  230;  Richardson  v.  Young,  38  Pa.  (N.  Y.)  218. 

St    169;   Hugg  V.   Augusta  Ins.   Co.,  "Hugg    v.    Baltimore    &c.    Mining 

7  How.   (U.  S.)  595.  Co.,  35  Md.  414;  Clark  v.  Massachu- 

"The  Teutonia,  L.  R.  3  Adm.  394.  setts  Fire  &  Marine  Ins.  Co.,  2  Pick. 

**3  Kent's  Com.  230;  United    Ins.  (Mass.)  104,  13  Am.  Dec.  400;  Searle 

Co.  V.  Lenox.  1  Johns.  Cas.   (N.  Y.)  v.  Scovell,  4  Johns.  Ch.  (N.  Y.)  218; 

377,  2  Johns.  Gas.  (N.Y.)  443;  Smyth  Griswold  v.   New  York  Ins.   Co.,  3 


THE    carrier's   rights.  227 

§211.  Transhipment  at  rate  different  from  original  rate 
agreed  upon. — If  the  carrier  employs  another  carrier  to  com- 
plete the  voyage  at  a  lower  rate  than  that  agreed  to  be  paid  by 
the  shipper,  so  that  the  transhipment  will  be  at  a  profit,  it  is 
presumed  that  such  a  contract  was  made  by  the  carrier's  agent  in 
the  carrier's  own  interest,  and  the  shipper  is  still  held  liable  for 
the  freight  which  he  contracted  to  pay.  But  the  agent  of  the 
carrier  is  held  to  have  no  authority  to  contract  to  pay  a  greater 
sum  than  was  agreed  upon  between  the  first  carrier  and  the  ship- 
per, and  if  it  is  necessary  in  transhipping  to  contract  to  pay  a 
higher  rate,  he  is  held  in  such  act  to  be,  not  the  agent  of  the  car- 
rier, but  the  agent  from  necessity  of  the  owner  of  the  goods.*'' 
The  shipper  can  thus  never  gain  by  a  transhipment.  If  the  ship 
is  captured  by  the  public  enemy,  there  is  no  right  to  freight,*'  but 
if,  after  capture,  the  goods  are  carried  to  destination,  the  carrier 
is  entitled  to  full  freight.*^  A  carrier  who  carries  the  goods  in- 
trusted to  him  contrary  to  the  express  directions  of  the  owner  is 
entitled  to  no  compensation.  For  instance,  if  goods  marked  to 
be  forwarded  by  one  line  are  sent  by  the  preceding  carrier  over 
a  different  line,  the  latter  cannot  recover  freight,  as  the  marks 
show  what  the  shipper's  direction  was.*" 

§  212.  When  carrier's  right  to  sue  accrues. — ^The  carrier 
has  no  right  to  sue  for  freight  until  his  contract  has  been  com- 
pleted by  an  actual  delivery,  or  constructive  deliver}%  in  the  eyes 
of  the  law.^°  If,  in  addition  to  delivery,  the  contract  provides 
that  the  carrier  is  to  hold  the  goods  a  reasonable  length  of  time 
for  the  consignee,  or  is  to  give  notice  to  him,  there  is  no  right  to 

Johns.    (N.    Y.)    321;    Crawford   v.       *^Mumford  v.  Commercial  Ins.  Co., 

Williams,   1   Sneed    (Tenn.)    205,  60  5  Johns.  (N.  Y.)  262. 
Am.  Dec.  146  and  note;  Hugg  v.  Au-        ^'Bird   v.   Georgia   R.   Co.,   72   Ga. 

gusta    Ins.   &   Banking   Co.,   7  How.  655;  Schureman  v.  Withers,  Anthon's 

(U.  S.)  595,  12  L.  ed.  834.  N.  P.  (N.  Y.)  166  (2d  ed.  230). 

*«  Shipton  V.  Thornton,  9  Ad.  &  El.        ^  Mashiter  v.  Buller,   1   Camp.  84 ; 

314;  The  Soblomsten,  L.  R.   1  Adm.  Grand  Rapids  &  T.  R.  Co.  v.  Diether. 

293;   Hugg  v.   Baltimore  &c.   Mining  10  Ind.  App.  206,  37  N.  E.  39,  1069, 

Co.,  35  Md.  414,  6  Am.  Rep.  425.  53  Am.  St.  385;  Certain  Logs  nf  Ma- 

«Beale  v.  Thompson,  3  Bos.  &  P.  hoganv,  2  Snmn.    (U.   S.)    589,   Fed. 

405;  The  Race  Horse,  3  Rob.   Adm.  Cas.    No.   2559;    Brfttan    v.   Barnaby, 

101;  Tirrell  v.  Gage,  4  Allen  (Mass.)  21  How.  (U.  S.)  527,  16  L.  ed.  177. 
245. 


228  BAILMENTS. 

freight  charges  until  such  conditions  have  been  met.^^  Freight 
paid  in  advance  may  be  recovered  by  the  shipper  if  the  goods  are 
not  carried,  since  in  such  case  there  is  a  faihire  of  consideration.^^ 
There  may  be  an  agreement,  however,  that  freight  paid  in  ad- 
vance shall  belong  to  the  carrier  even  if  the  contract  is  not  com- 
pleted. If  there  is  such  an  agreement,  the  shipper  may  not  re- 
cover.^^ 

§  213.  Demurrage. — The  consignee  of  goods  carried  by 
water  is  liable  to  the  carrier  for  any  delay  caused  by  his  fault 
in  not  accepting  the  goods  promptly  after  notice,  and  where  there 
is  stipulation  in  the  contract  as  to  the  amount  payable,  the  com- 
pensation for  such  delay  is  known  as  demurrage.  In  accordance 
with  the  universal  rule  in  contracts,  a  stipulation  which  prescribes 
a  time  within  which  a  thing  is  to  be  done,  unqualifiedly,  time 
being  of  the  essence  of  the  contract,  absolutely  binds  the  party 
making  such  agreement,  although  he  may  have  been  prevented 
from  performing  by  circumstances  entirely  beyond  his  control.  So 
if  the  charterer  of  a  vessel  binds  himself  without  qualification  to 
unload  or  load  within  a  certain  time,  he  takes  the  risk  of  anything 
which  may  occur  to  prevent  his  performance.^*  If  the  contract 
is,  however,  only  to  pay  demurrage  for  detention  by  default  of 
the  charterers  of  the  ship,  they  are  not  liable  for  detention  caused, 
not  by  their  act,  but  by  some  outside  agency,  as  the  firing  upon 
the  harbor  by  an  enemy's  war  vessel,  making  unloading  impossi- 
ble.^^ All  clauses  providing  that  special  demurrage  shall  be  paid 
in  certain  cases  must  be  strictly  construed,  and  the  carrier  must 
show  clear  noncompliance  in  order  to  recover  under  such  clause.^*' 

■^Hutchinson     Carriers     (3d    ed.),  "Hutchinson     Carriers     (3d    ed.). 

§    829;    Redmond    v.    Liverpool    &c.  §  833;  Hagar  v.  Elmslie.  107  Fed.  511. 

Steamboat  Co.,  46  N.  Y.  578.  46  C.   C.  A.  446;   Elmslie  v.  Hagar, 

"The  Schooner  Arthur  B.,  1  Alas-  101  Fed.  840;  Empire  Transp.  Co.  v. 

ka  403;  De  Sola  V.  Pomares,  119  Fed.  Philadelphia    &c.    Iron    Co.,    11    Fed. 

7>1Z ;  Benner  v.  Equitable  Safety  Ins.  919,  23  C.  C  A.  564,  35  L.  R.  A.  623. 

Co..  6  Allen    (Mass.)  222;   Griggs  v.  ^  Burrill  v.  Crossman,  130  Fed.  763, 

Austin,  3   Pick.    (Mass.)    20,    15  Am.  65  C.  C.  A.  189;  Crossman  v.  Burrill, 

Dec.   175:   Brown  v.   Harris.  2  Gray  179  U.  S.  100,  45  L.  ed.  106,  21  Sup. 

(Mass.)   359;  The  Bird  of  Paradise,  Ct.  38. 

5  Wall.  (U.  S.)  545.  18  L.  ed.  662.  ^«  Continental    Coal    Co.   v.    Bowne, 

''De  Silvale  v.  Kendall.  4  M.  &  S.  115  Fed.  945,  53  C.  C.  A.  427. 
37;  Hichs  v.  Shield,  7  El.  &  Bl.  dll; 
Mashiter  v.  BuUer,  1  Camp.  84. 


THE    CARRIER  S    RIGHTS.  229 

If  delay  is  caused  by  the  default  of  the  shipowner,  the  charterer  is 
liable  under  no  circumstances,^^  or  if  the  delay  is  caused  by  a  stip- 
ulation in  the  contract  which  is  for  the  shipowner's  benefit,  for  in- 
stance that  the  ship  shall  be  loaded  only  when  it  can  be  kept  afloat, 
and  the  nature  of  the  harbor  is  such  that  time  is  lost  in  waiting  for 
tides.^^  In  certain  cases  where  delay  is  caused  by  the  custom 
officers,  the  charterer  is  not  liable.^*  And  it  is  held  that  the 
carrier  has  no  lien  on  the  goods  for  demurrage  unless  there  is  a 
stipulation  in  the  contract  to  that  effect.*"* 

§  214.  Construction  of  special  clauses  in  demurrage  con- 
tracts.— Ordinary  forms  of  contracts  may  provide  that  load- 
ing or  unloading  shall  be  completed  in  so  many  "days",  or  "days 
excepting  Sundays",  "working  days",  or  "weather  working 
days".  The  first  includes  all  days  in  succession,  among  them 
Sundays  and  holidays;®^  the  second  all  days  except  Sundays;®^ 
the  third  excludes  Sundays  and  legal  holidays,  but  not  stormy 
days.  Good  Friday,  or  a  day  taken  off  by  the  workmen  to  attend 
a  funeral,^^  while  the  last  excludes  days  when  the  weather  is 
unfit  for  the  work  of  loading."*  Usually  when  the  vessel  begins  to 
unload  on  one  day,  a  day's  time  is  counted  at  the  end  of  that  day, 
fractions  of  a  day  not  being  considered  unless  it  is  clear  from  the 
contract  that  such  was  the  intention.*^  If  there  is  an  agreement 
for  weather  working  days,  the  rule  is  that  if  substantial  work  is 
done,  though  not  a  full  half  day,  a  half  day  is  counted ;  if  almost 

"Hansen  v.  Donaldson,  1  Sess.  Cas.  v.  Rodie,  15  East.  547,  13  R.  R.  528; 

C4th)    1066;   Ewan  v.  Tredegar  Co.,  Birley  v.  Gladstone,  3  M.  &  S.  203. 

88  Fed.  703 ;  Jones  v.  Niver  Coal  Co.,  ^  Hughes  v.   Hoskins  Lumber  Co., 

135  Fed.  734.  68  C.  C.  A.  372.  136    Fed.    435 ;    Baldwin    v.    Sullivan 

"*  Carlton    Steamship   Co.   v.   Castle  Timber  Co.,  65  Hun  (N.  Y.)  625,  48 

Mail    Packets    Co.,    Limited,    L.    R.  N.  Y.  St.  296,  20  N.  Y.  S.  496,  affd. 

(1898)  App.  Cas.  486,  67  L.  J.  Q.  B.  142  N.  Y.  279,  36  N.  E.  1060. 

795.  *==  James  v.  Brophy,  71  Fed.  310,  18 

''  Jones  V.  Niver  Coal  Co.,  135  Fed.  C.  C.  A.  49. 

734,  68  C.  C.  A.  372.  *°  Hughes  v.  Hoskins  Lumber  Co., 

""Nicolette  Lumber  Co.  v.  People's  136  Fed.  435;   Hagcrman  v.   Norton, 

Coal  Co.,  213  Pa.  379,  62  Atl.   1060,  105  Fed.  996,  46  C.  C.  A.  1 ;  Sorensen 

3  L.  R.  A.  (N.  S.)  327  and  note,  110  v.  Kevser,  52  Fed.  163,  2  C.  C.  A.  650. 

Am.  St.  550,  5  Am.  &  Eng.  Ann.  Cas.  •"  The  India,  49  Fed.  76,  1  C.  C.  A. 

387.     But  see  post,  §   217,  n.  1.    The  174;  Hughes  v.  Hoskins  Lumber  Co., 

Hvperion's  Cargo,  2  Lowell   (U.  S.)  136  Fed.  435. 

93.    Contrary,  see  case*  cited  in  note,  *'The  Katy  C1895),  P.  56;  Yeoman 

S  Am.  &  Eng.  Ann.  Cas.  387;  Phillips  v.  The  King  (1904).  2  K.  B.  429,  73 

L.  J.  K.  B.  904. 


230  ^BAILMENTS. 

a  full  day,  a  full  day  is  counted,  and  no  smaller  fraction  than  a 
half  day  is  counted,  and  if  a  very  short  time  is  worked,  no  account 
is  taken  at  all.®*^  Under  an  agreement  to  use  "quick  dispatch"  in 
unloading,  the  charterer  is  practically  bound  to  unload  in  a  fixed 
time,  and  is  not  excused  by  showing  that  the  customary  method 
was  slower.^^  If  it  is  agreed  to  use  customary  "quick  despatch", 
the  construction  depends  upon  the  custom  at  the  port,^^  and  an 
agreement  for  "customary  despatch"  does  not  include  voluntary 
delay  by  the  charterers,  but  merely  usages  of  the  port  beyond 
control  of  the  charterer,  and  not  any  detention  to  meet  the  con- 
venience of  the  charterer.^''  When  it  is  provided  that  the  cargo 
is  to  be  unloaded  "as  fast  as  the  steamer  can  deliver,"  no  fixed 
time  is  contemplated,  but  the  time  in  which  unloading  can  be 
accomplished  depends  upon  the  circumstances,  except  such  cir- 
cumstances as  are  brought  about  by  the  one  whose  duty  it  is  to 
unload/'^  Clauses  providing  that  the  ship  is  to  be  loaded  "as 
fast  as  it  can  receive"  are  not  dependent  upon  weather  condi- 
tions." An  exception  to  demurrage  liability  if  delay  is  caused 
by  strikes  does  not  refer  to  strikes  at  some  distance  from  the 
port,'^  but,  on  the  other  hand,  if  there  is  a  strike  in  being  at  the 
tune  the  contract  is  signed,  such  strike  is  within  the  exception  for 
the  exception  does  not  refer  merely  to  future  strikes.'^^ 

§215.  Demurrage  where  contract  is  silent  as  to  tirtie  of 
unloading. — If  the  contract  is  silent  as  to  the  time  of  loading 
or  unloading,  there  is  a  contract  implied  that  the  charterer  will 
unload  or  load  with    reasonable   diligence    under  the   circum- 

*"  Branckelow     Steamship     Co.     v.  A.  TPI  \  The  Glenfinlas,  48  Fed.  758, 

Lamport   (1897),  1  Q.  B.  570,  66  L.  1  C.  C.  A.  85. 

J.  Q.  B.  382.  "^Atlantic    &c.    Steamship    Co.    v. 

"Mott  V.   Frost,  47  Fed.  82;  Ten  Guggenheim,  123  Fed.  330. 

Thousand  and  Eighty-two  Oak  Ties,  '^  New   Ruperra    Steamship   Co.   v. 

87  Fed.  935.  Two    Thousand    Tons    of    Coal,    124 

"'The    Cargo    of    the    Joseph    W.  Fed.  937.     Nor   to  a  strike  of  coal 

Brooks,   122   Fed.  881.  operatives  which  makes  necessary  so 

"^  Seagar  v.  Steamship  Co.,  55  Fed.  much  importation  of  coal  as  to  crowd 
324,  55  Fed.  880,  5  C.  C.  A.  290 ;  Mil-  a  harbor  with  coal  vessels  and  de- 
burn  V.  Thirty-five  Thousand  Boxes,  lay  unloading.  W.  K.  Niver  Coal 
57  Fed.  236,  6  C.  C.  A.  317 ;  Egan  v.  Co.  v.  Cheronea  S.  S.  Co.,  142  Fed. 
Barclay  Fibre  Co.,  61  Fed.  527 ;  Smith  402,  11  C.  C.  A.  502  and  5  L.  R.  A. 
v.  Roberts,  67  Fed.  361,  14  C.  C.  A.  (N.  S)  126n. 
417.  ■'"Dobell  v.  Green    (1900).  1  Q.  B. 

'"Hulthen  v.  Stewart,  L.  R.  (1903)  526,  69  L.  J.  Q.  B.  434,  82  Law  T. 

App.  Cas.  389.  12  L.  J.   K.  B.  917;  (N.  S.)  314,  5  Com.  Cas.  161. 
Hine  v.  Perkins,  55  Fed.  996.  5  C.  C. 


THE    CARRIERS    RIGHTS.  23 1 

Stances.'*  No  demurrage  is  allowable  for  delays  such  as  botli 
parties  should  have  contemplated  at  the  time  the  contract  was 
made.  A  charterer  must  have  a  cargo  ready  for  loading"  in  ab- 
sence of  contract  or  controlling  usage.  The  charterer's  duty  is 
to  provide  appliances  for  loading  or  unloading  such  as  are  in 
ordinary  use  at  the  port  for  cargoes  of  the  kind  to  be  moved. '"^ 
The  words  *'in  regular  turn"  in  a  charter  party  mean  prima  facie 
the  regular  turn  of  the  port  of  lading,  though  it  may  be  shown 
that  they  are  used  with  a  different  meaning,  as  the  regular  turn 
at  a  colliery,^ ^  and  the  regular  rule  is  that  vessels  shall  load  in 
order  of  arrival.'^  Lay  days  for  loading  are  not  counted  as 
against  the  charterer  until  he  is  given  notice  of  the  readiness  of 
the  vessel,'^  and  notice  is  necessary  to  the  consignee  at  the  port  of 
discharge.^"  It  is  generally  held  that  the  ship  must  be  in  a  posi- 
tion where  the  charterer  can  begin  to  do  his  work  before  lay  days 
can  be  counted.^^  But  if  she  is  to  go  to  a  berth  as  ordered,  the 
voyage  is  ended  when  she  goes  to  a  designated  berth,  and  not 
when  she  arrives  at  the  dock.*^  The  charterer  is  not  liable  for 
delay  after  loading  is  completed  when  it  occurs  without  his 
fault. ^^  The  consignee  who  accepts  goods,  though  bound  by  an 
implied  contract  to  pay  freight,  is  not  bound  to  pay  demurrage 
unless  there  is  an  express  contract,^*  but  he  may  be  liable  for 

""  Pantland    Hick    v.    Raymond  L.  B.  93,  66  L.  J.  Q.  B.  40,  1  Q.  B.  93 ; 

R.    (1893)   App.  Cas.  22,  62  L.  J.  Q.  Brereton    v.    Chapman,    7    Bing.    559. 

B.  98;  Empire  Transp.  Co.  v.  Phila-  But  if  the  charter  party  provides  that 
delphia  &  R.  Coal  &c.  Co.,  77  Fed.  "time  to  commence  to  run  when 
919,  23  C.  C.  A.  564,  35  L.  R.  A.  623.  steamer  is  ready  to  unload  and  writ- 

"  Grant  v.   Coverdale,  9  App.   Cas.  ten  notice  given,  whether  in  berth  or 

470 ;  Kay  v.  Field,  8  Q.  B.  Div.  594,  not,"  time  begins  as  soon  as  notice  is 

10  Q.    B.    Div.   241.  given,    whether   or   not   the   berth   is 

''Wright  V.  New  Zealand  Shipping  ready.       W.    K.    Niver    Coal    Co.    v. 

Co.,  4  Ex.   D.    165;   Postlethwaite  v.  Cheronea  S.  S.  Co.,  142  Fed.  402,  7?> 

Freeland,   5  App.   Cas.   599.  C.    C.   A.   502,   5  L.   R.   A.    (N.    S.) 

"  Barque      Quilpue,      Limited,      v.  126n. 

Brown    (1904),   2   K.   B.  264,   7Z   L.  *"- In  re  Two  Thousand  Ninetv-eight 

J.   K.   B.   596.  Tons  of  Coal.  135  Fed.  317.  67  C.  C. 

""McArthur  Bros.  Co.  v.  Six  Hun-  A.   671;    Tharsis    Sulphur   &    Conper 

dred    Twenty-two    Thousand,    Seven  Co.  v.  Morel   (1891).  2  Q.  B.  647,  61 

Hundred   Fourteen   Feet  of  Lumber,  L.  J.  Q.  B.  11;  Sanders  v.  Jenkins,  1 

131    Fed.  389.  Q.  B.  93.  66  L.  J.  0.  B.  40. 

"  Dantzler  Lumber  Co.  v.  Churchill,  *"  Pringle   v.    Mollett,   6   M.    &   W. 

136  Fed.  560,  69  CCA.  270.  80. 

'"Hutchinson      Carriers      (3d   ed.),  "Davton  v.   Parke.   142  N.  Y.  391, 

§  848;  Smith  v.  Lee,  66  Fed.  344,  13  ^7  N.  F.  642;  Van  Etten  v.  Newton, 

C.  C  A.  506.  134  N.  Y.  143,  31  N.  E.  334,  30  Am. 
"Sanders   v.    Jenkins  (1897),  1  Q.  St.  630n. 


232  BAILMENTS. 

damages  in  the  nature  of  demurrage  for  undue  delay  caused  by 
his  act."'  ^  't^/CT ' 

§  216.  Cesser  clause  and  lien  for  demurrage. — The  clause 
often  found  in  charter  parties  known  as  the  cesser  clause,  to  the 
effect  that  the  charterer's  responsibility  is  to  cease  when  the  vessel 
is  loaded  and  bills  of  lading  signed,  is  construed,  together  with  a 
clause  providing  a  lien  in  favor  of  the  shipowners,  for  demurrage, 
and  the  cesser  clause  is  held  inapplicable  to  a  liability  not  included 
by  the  lien.^^  The  carrier  has  no  lien  at  common  law  for  demur- 
rage, and  such  right  must  arise  by  contract.^^  The  maritime  law 
allows  to  the  shipowner  a  lien  for  demurrage,  or  for  damages  in 
the  nature  thereof,^^  but  either  lien  may  be  waived,  what  is  a 
waiver  being  a  question  of  fact.  Delivery  of  the  goods  and  col- 
lection of  freight  is  not  a  waiver  of  a  claim  for  demurrage,*^  but 
other  circumstances  must  be  shown. 

§  217.  Demurrage  as  applied  to  railroads. — It  is  held  that 
where  the  railroad  company  is  under  a  duty  to  unload,  as  in  the 
case  of  small  or  package  freight,  it  can  assert  no  claim  against  the 
consignee  for  demurrage  charges,  the  reason  being  that  railroad 
companies  discharge  cargoes,  while  in  the  case  of  water  carriers 
the  consignee  must  discharge.^"  If,  however,  by  contract  or  cus- 
tom it  is  the  duty  of  the  consignee  to  unload,  as  where  the  f  reiglit 
is  bulky,  the  company  may  sue  for  a  reasonable  compensation  for 
the  use  of  the  cars,  if  not  unloaded  in  a  reasonable  time,  for  if 
the  railroad  company  is  deprived  of  the  use  of  its  cars,  both  the 
company  and  the  public  will  be  injured.'*  And  railroads  may  pro- 

'*  Graham    v.    Planters'    Compress  Fitchburg  R.  Co.,  116  Mass.  119,  44 

Co.,   129  Fed.  253.  N.  E.  119.     See  Two  Hundred  Six- 

**  Grossman   v.    Burrill,    179  U.    S.  teen   Loads   and    Six   Hundred   Sev- 

100,  45  L.  ed.  106,  21  Sup.  Ct.  38.  enty-eight    Barrels   of    Fertilizer,   88 

*'  See    cases    cited    under   note   60  Fed.  984. 

this   chapter.  /  ""Chicago  &  N.  W.  R.  Co.  v.  Jen- 

**  Two  Hundred   Seventy-five  Tons  kins,  103  111.  588. 

of  Mineral   Phosphates,  9  Fed.  209;  "^Elliott   R.   R.    (2d   ed.),   §    1567; 

The  Hyperion's  Cargo,  2  Lowell   (U.  Southern  R.   Co.  v.   Lockwood   Mfg. 

S.)    93;   Donaldson   v.   McDowell,    1  Co.,   142  Ala.  322,  7>1  So.  667,  68  L. 

Holmes  (U.  S.)  290,  Fed.  Gas.  No.  R.  A.  227,  110  Am.  St.  32,  4  Am.  & 

3985.  Eng.  Ann.  Gas.  12 ;  Miller  v.  Georgia 

'"  Iroquois  Furnace  Go.  v.  Elphicke,  R.  &c.  Co.,  88  Ga.  563,  15  S.  E.  316, 

200   111.  411,   65   N.   E.   784;   Durch-  18  L.  R.  A.  323,  30  Am.  St.  170,  SO 

mann  v.  Dunn,   106  Fed.  950,  46  C.  Am.  &  Eng.  R.  Gas.  79;  Schumacher 

C.  A.  62;  Garfield  &c.  Coal  Co.  v.  v.  Chicago  &  N.  W.  R.  Co.,  207  111. 


THE    CARRIER  S    RIGHTS. 


233 


vide  in  their  receipts  that  unless  the  cars  are  unloaded  by  a  certain 
time,  demurrage  will  be  charged,  and  acceptance  of  such  a  receipt 
will  bind  the  shipper  to  pay  a  reasonable  demurrage  charge.''" 
Or  if  such  charges  are  provided  for  by  the  reasonable  rules  and 
regulations  of  the  railroad  company  the  shipper  is  liable  without 
notice  in  the  receipt. '^^  So  rules  to  the  same  effect  of  car  service 
associations  will  be  enforced.^*  The  better  rule  seems  to  be  that 
the  railroad  has  a  lien  on  the  goods  for  such  demurrage  charges,"^ 
but,  on  the  contrary,  it  is  held  in  a  recent  case  that  it  has  not  such 
a  lien  unless  expressly  contracted  for  and  may  not  retain  freight 
until  charges  for  demurrage  are  paid.®^ 

§  218.  Charges  for  special  services. — A  carrier  may  not 
charge  specially  for  anything  customarily  rendered  as  part  of,  or 
properly  incident  to,  the  carriage,  as  for  proper  station  accommo- 
dations, or  loading,  unloading,  or  weighing  goods.**^     But  car- 


199,  69  N.  E.  825;  Norfolk  &c.  R. 
Co.  V.  Adams,  90  Va.  393,  18  S.  E. 
673,  22  L.  R.  A.  530,  44  Am.  St.  916 
and  note.  Charges  of  one  dollar  a 
day  for  detention  of  a  car  after  48 
hours,  Sunda3's  and  holidays  ex- 
cepted, have  been  held  not  unreason- 
able. Kentucky  Wagon  Mfg.  Co.  v. 
Ohio  &c.  R.  Co.,  98  Ky.  152,  32  S. 
W.  595,  17  Ky.  L.  n(>,  36  L.  R.  A. 
850,  56  Am.  St.  326;  Miller  v 
Georgia  R.  &c.  Co.,  88  Ga.  563,  15 
S.  E.  316,  18  L.  R.  A.  2>22>,  30  Am.  St. 
170,  50  Am.  &  Eng.  R.  Cas.  79.  And 
such  a  charge  is  held  not  to  be  in 
violation  of  a  statute  forbidding  any 
except  the  regular  charge  for  trans- 
portation, delivery  or  storage,  it  being 
a  charge  neither  for  transportation, 
delivery,  nor  storage.  Norfolk  &c.  R. 
Co.  V.  Adams,  90  Va.  393,  18  S.  E. 
673,  22  L.  R.  A.  530,  44  Am.  St.  916 
and  note.  It  is  a  defense  in  an  ac- 
tion for  demurrage  that  cars  were 
so  delivered  as  to  prevent  defendant 
from  handling  them  properly,  being 
delivered  in  such  large  numbers  and 
90  unreasonably  concentrated.  Louis- 
ville &c.  R.  Co.  V.  Empire  State 
Chem.  Co.,   189  Fed.   174. 

"Yazoo  &c.  R.  Co.  v.  Searles,  85 
Miss.  520,  n  So.  939,  68  L.  R.  A. 
715;  Pennsylvania  R.  Co.  v.  Mid- 
vale  Steel  Co.,  201  Pa.  St.  624,  51 
Atl.  313,  88  Am.  St.  836. 


•'Miller  V.  Georgia  R.  &c.  Co.,  88 
Ga.  563,  15  S.  E.  316,  18  L.  R.  A.  323. 
30  Am.  St.  170,  50  Am.  &  Eng.  R. 
Cas.  79;  Yazoo  &c.  R.  Co.  v.  Searles, 
85  Miss.  520,  Zl  S.  W.  939,  68  L. 
R.  A.  715. 

**  Southern  R.  Co.  v.  Lockwood 
Mfg.  Co.,  142  Ala.  322,  137  So.  667. 
68  L.  R.  A.  227,  110  Am.  St.  32;  Ken- 
tucky Wagon  Mfg.  Co.  v.  Ohio  &c. 
R.  Co.,  98  Ky.  152,  32  S.  W.  595,  17 
Ky.  L.  12(i,  36  L.  R.  A.  850,  56  Am. 
St.  326,  12  Lewis  Am.  R.  &  Corp.  48 ; 
Yazoo  &c.  R.  Co.  v.  Searles,  85  Miss. 
520,  Z1  S.  W.  939,  68  L.  R.  A.  715. 

*' Hutchinson  Carriers  (3d  ed.), 
§  862;  Southern  R.  Co.  v.  Lockwood 
Mfg.  Co.,  142  Ala.  322,  Zl  So.  667,  68 
L.  R.  A.  227,  110  Am.  St.  32;  Schu- 
macher v.  Chicago  &  N.  W.  R.  Co., 
207  111.  199,  69  N.  E.  825;  Kentucky 
iWagon  Mfg.  Co.  v.  Ohio  &c.  R.  Co., 
98  Ky.  152,  32  S.  W.  595,  36  L.  R. 
A.  850,  56  Am.  St.  326;  Pittsburg,  C. 
C.  &  St.  L.  R.  Co.  v.  Mooar  Lumber 
Co.,  27  Ohio  Cir.  Ct.  588. 

*"  Nicolette  Lumber  Co.  v.  People's 
Coal  Co.,  213  Pa.  St.  379,  62  Atl.  1060, 
3  L.  R.  A.  (N.  S.)  327n,  110  Am. 
St.  550,  5  Am.  &  Eng.  Ann.  Cas. 
387 

•''Elliott  R.  R.  (2d  ed.).  §  1566; 
Hall  v.  London  &c.  R.  Co.,  L.  R. 
15  O.  B.  Div.  505,  22  Am.  &  Eng. 
R.   Cas.   446;   Yazoo   &c.   R.  Co.   v. 


,234  BAILMENTS. 

riers  may  charge  for  services  not  a  part  of  transportation  or  not 
usually  rendered  in  carrying,  as  for  terminal  services  after  trans- 
portation is  completed,^^  or  for  services  in  conveying  the  property 
from  its  place  of  delivery  to  an  elevator  or  warehouse,®^  or  fur- 
nishing food  to  stock,  where  such  was  the  owner's  duty  and  he 
fails,^  and,  it  has  been  held,  for  special  service  in  carrying  per- 
ishable goods  in  specially  fitted  cars  by  fast  freight.^ 

§  219.  Discrimination  in  freight  charges. — The  subject 
of  discrimination  of  rates  was  well  disposed  of  in  the  case  of 
State  V.  Central  Vermont  Railway  Company,^  by  Tyler,  J.,  who 
said,  "At  common  law  a  common  carrier  of  freight  was  not  bound 
to  treat  all  shippers  alike.  It  was  only  bound  to  carry  for  every 
shipper  at  a  reasonable  rate.  It  might  favor  any  particular  shipper 
or  class  of  shippers  where  the  circumstances  of  the  case  warranted 
a  distinction,  as  where  the  preferred  shipper  or  class  offered 
goods  in  larger  quantities  or  under  such  conditions  that  they 
could  be  transported  at  less  expense.  But  there  is  always  the 
limitation  that  the  discrimination  or  preferences  must  be  reason- 
able, and  the  terms  must  not  be  unreasonably  unequal.  It  is 
equally  well  settled  that  it  is  within  the  power  of  a  state  legisla- 
ture, with  reference  to  commerce  within  the  state,  and  of  con- 
gress, with  reference  to  interstate  commerce,  to  prescribe  the  rates 
to  be  charged  by  public  carriers  for  their  services,  so  long  as  the 
charges  fixed  do  not  require  that  the  services  rendered  shall  be 
without  reasonable  compensation.*  But  it  is  held  that,  though 
the  power  of  the  legislature  to  prescribe  the  charges  of  a  railroad 
company  is  beyond  question,  it  is  not  an  unlimited  power.  It  is 
not  a  power  to  destroy  or  to  compel  the  doing  of  a  service  without 

Searles,    85    Miss.    520,    Z7    So.    939,  Great  Northern  R.   Co.  v.   Swaffield, 

68  L.  R.  A.  715.  L.  J.  43  Exch.  89,  L.  R.  9  Exch.  132. 

"Elliott  R.  R.  (2d  ed.),  §  1551,  " Delaware  State  Grange  &c.  of  the 
1566;  National  Tube  Works  Co.  v.  Patrons  of  Husbandry  v.  New  York, 
Baltimore  &c.  R.  Co.  (Pa.),  8  Atl.  P.  &  N.  R.  Co.,  3  I.  C.  R.  554.  Some 
6.  28  Am.  &  Eng.  R.  Cas.  13;  Inter-  of  these  matters,  as  well  as  demur- 
estate  Commerce  Com.  v.  Chicago,  B.  rage,  may  be  largely  regulated  by  in- 
&  I.  R.  Co.,  186  U.  S.  320,  46  L.  ed.  terstate  commerce  law  or  state  rail- 
1182,  22  Sup.  Ct.  824.  road  commission  act. 

"  Owen   V.    St.    Louis   &   S.   F.    R.  ,      '  State  v.  Central  Vermont  R.  Co., 

Co.,  83  ]\Io.  454,  25  Am.  &  Eng.  R.  81  Vt.  463,  71  Atl.   194,  130  Am.  St. 

Cas.  371;  Johnson  v.  Cayuga  &  S.  R.  1065.             ' 

Co..  11  Barb.   (N.  Y.)   621.  "Citing  Smyth  v.  Ames,  169  U.  S. 

,    'Story   Bailments    (9th    ed.)    586;  466,  42  L.  ed.  819,  18  Sup.  Ct.  418. 


THE    CARRIER  S    RIGHTS.  235 

reward,  or  to  take  private  property  for  public  use  without  just 
compensation  or  without  due  process  of  law.'"*  So  rebates  of  a 
part  of  freight  charges,  after  carriage,  have  been  allowed  at  com- 
mon law,  where  the  discrimination  was  not  unjust,  and  the  ship^ 
per  may  recover  in  a  proper  action.^  But  if  such  a  rebate 
amounted  to  unjust  discrimination  it  was  not  allowable  at  com- 
mon law.^  The  shipper  cannot  recover  on  a  contract  to  pay 
rebate  which  is  illegal.^  So  if  the  carrier  makes  a  mistake  and 
charges  a  lower  rate  on  an  interstate  shipment  than  that  allowed 
by  the  Interstate  Commerce  Act,  he  may  demand  the  proper 
amount  before  delivery.'  This  does  not  hold  if  he  intentionally 
gave  a  lower  rate,"  but  whether  given  by  mistake  or  intention,  the 
shipper  cannot  hold  a  common  carrier  who  was  not  a  party  to  the 
contract  and  had  no  knowledge."  It  is  beyond  the  scope  of  the 
present  article  to  enter  into  a  particular  discussion  of  the  manner 
in  which  contracts  which  carriers  may  enter  into  are  affected 
under  the  Interstate  Commerce  Act  and  Hepburn  Amendment,^^ 
or  by  state  statutes,^^  and  we  simply  refer  generally  to  authorities 
where  the  same  are  discussed. 

§220.     Carrier's  special  property  in  goods,  and   general 
rights  as  bailee. — Since  the  carrier  is  a  bailee  for  hire,  and 

=  Citing  Budd  v.  New  York,  143  Ervin,  118  111.  250,  8  N.  E.  862,  59 
U  S.  517,  36  L.  ed.  247,  12  Sup.  Ct.  Am.  Rep.  369;  Fitzgerald  v.  Grand 
468 ;  cases  cited  in  Smyth  v.  Ames,  Trunk  R.  Co.,  63  Vt.  169,  22  Atl.  76, 
169  U.  S.  466,  42  L.  ed.  819,  18  Sup.  13  L.  R.  A.  70.  As  to  effect  of  inter- 
Ct.  418;  Georgia,  R.  &  Bkg.  Co.  v.  state  commerce  law  on  existing  con- 
Smith,  128  U.  S.  174,  32  L.  ed.  Zll,  tracts  for  rebates,  see  BuUard  v. 
9  Sup.  Ct.  47.  See  also,  Cleveland,  Northern  Pac.  R.  Co.,  10  Mont.  168, 
C.  C.  &  I.  R.  Co.  V.  Closser,  126  25  Pac.  120.  11  L.  R.  A.  246. 
Ind.  348,  9  L.  R.  A.  754n,  22  Am.  St.  'Savannah  &c.  R.  Co.  v.  Bundick, 
593;  Louisville  &c.  R.  Co.  v.  Com-  94  Ga.  775,  21  S.  E.  995;  Haurigan 
monwealth,  99  Ky.  132,  18  Ky.  L.  42,  v.  Chicago  &c.  R.  Co.,  80  Nebr.  132, 
35  S.  W.  129,  ZZ  L.  R.  A.  209,  59  113  N.  W.  983,  16  Am.  &  Eng.  Ann. 
Am.  St.  457.  Cas.  450  and  note. 

•=  Elliott   R.    R.    (2d    ed.),    §    1565;  "Illinois  Cent.  R.  Co.  v.  Seitz,  214 

Cleveland,  C.  C.  &  I.  R.  Co.  v.  Closs-  111.   350,  11  N.   E.  585,   105  Am.   St. 

er,  126  Ind.  348,  26  N.  E.   159,  9  L.  108. 

R.  A.  754n,  22   Am.   St.  593;  Laurel  "Chicago,    R.    I.    &    P.    R.    Co.    v. 

Cotton  Mills  v.  Gulf.  S.  I.  R.  Co.,  84  Hubhell.  54  Kans.  232,  38  Pac.  266. 

Miss.   339,   37   So.    134,  66  L.   R.   A.  "Elliott  R.  R.   (2d  ed.),  §§  1662b- 

453.  1688c.     See  Barnes  Interstate  Trans- 

■'Cook  V    Chicago.    R.    T.   &   P.    R.  portation. 

Co..  81  Iowa  551,  46  N.  W.  1080,  9  "Elliott  R.  R.    (2d  ed.),  §§   1467- 

L.  R.  A.  164.  25  Am.  St.  512.  1469. 

°  Indianapolis,   D.   &   S.    R.   Co.   v. 


236  BAILMENTS. 

under  a  responsibility  to  the  owner  as  against  third  persons,  he 
stands  in  general  in  the  place  of  the  owner  to  redress  all  wrongs 
or  injuries  to  the  goods  while  in  his  possession,  and  if  the  goods 
are  taken  from  his  possession  wrongfully,  he  may  recover  by  an 
appropriate  action,  in  his  own  name,  or  if  they  are  damaged  or 
injured  he  may  sue  for  damages  in  his  own  name."  The  owner 
would  have  a  right  of  action  for  the  same  wrong,  but  this  is  not 
inconsistent  with  the  right  of  the  carrier.^^  If  the  carrier  should 
recover  the  full  value,  he  is  a  trustee  for  the  owner  for  the 
amount  beyond  his  own  interest." 

§  221.  When  subrogated  to  owner's  rights. — When,  how- 
ever, the  goods  have  been  lost  or  destroyed  while  in  the  possession 
of  the  carrier  through  the  fault  of  another,  and  the  carrier  has 
paid  the  owner  the  value  of  the  goods,  which  has  been  taken  in 
full  satisfaction,  the  carrier  is  subrogated  to  the  full  rights  of 
the  owner  against  such  third  party,  and  this  holds  true  even  if 
the  goods  have  been  injured  or  lost  by  the  act  of  the  carrier's 
agent,  since  in  such  case  the  carrier  succeeds  to  the  owner's  rights 
against  the  agent."  The  carrier  may  even  recover  the  possession 
of  the  goods  from  the  owner  himself  if  they  have  been  taken 
from  him  unlawfully,  as,  for  instance,  before  freight  charges  have 
been  paid,  in  which  instance  the  carrier,  having  a  lien  upon  the 
goods,  may  recover  them  or  may  sue  for  damages  to  his  special 
interest.  In  such  respect  he  is  said  to  be  in  the  situation  of  a 
pawnee,  from  whom  the  bailor  takes  the  goods  without  payment 
of  the  debt.^« 

§  222.  Right  to  insure. — The  carrier  may  insure  the 
goods  to  the  full  extent  of  their  value,  not  only  to  the  extent  of 

"Hutchinson     Carriers      (3d   ed.),  26  Ala.  189.  62  Am.  Dec.  Ill;  Ches- 

§   779;   Pittsburg,  C.  C.  &  St.   L.   R.  ley  v.  St.  Clair,  1  N.  H.  189;  Bishell 

Co.  V.  Chicago.  242  111.  178,  89  N.  E.  v.  Huntington,  2  N.   H.   142;  Wood- 

1022,  134  Am.  St.  316;  The  Beacons-  man  v.  Nottingham,  49  N.  H.  387,  6 

field,  158  U.  S.  303,  39  L.  ed.  993,  15  Am.  Rep.  533. 

Sup.  Ct.  860.  "Hagerstown  Bank  v.  Adams  Exp. 

^'  Booth  V.  Terrell,  16  Ga.  20 ;  Pitts-  Co.,  45  Pa.  St.  419,  84  Am.  Dec.  499. 

burg,  C.   C.  &  St.  L.  R.  Co.  v.   Chi-  '"Story     Bailments     (9th    ed.).      § 

cago,  242  111.  178,  89  N.  E.  1022,  134  303;  White  v.  Webb,   15  Conn.  302 

Am.  St.  316;  Morgan  v.  Ide,  8  Cush.  Van   Baalen  v.  Dean.  27  Mich.    104 

(Mass.)  420.  Young  v.   Kimball.  23   Pa.    St.   193; 

I    '"^  Steamboat    Farmer    v.    McCraw,  Hickok  v.  Buck,  22  Vt.  149. 


THE    carrier's    RIGHTS.  237 

his  own  interest,  for  the  carrier  in  case  of  loss  may  be  liable  for 
the  whole  value,"  or  he  may  insure  in  case  he  is  excepted  from 
the  risk,  for  the  benefit  of  the  owners.""  If  he  insures  for  the 
full  amount,  he  is,  as  to  the  amount  above  his  interest,  a  trustee 
for  the  owner.-^  He  may  contract  with  the  shipper  for  the 
benefit  of  insurance,  made  by  the  shipper,  upon  the  goods,  and 
in  case  of  loss  and  liability  upon  the  insurer's  part,  he  may  pay  the 
owner,  and  recover  from  the  insurer."^  But  the  carrier  cannot 
refuse  to  carry  goods  unless  the  owner  insure  for  the  car- 
rier's benefit,"^ 

§  223.  Authority  to  sell. — Like  any  other  bailee,  the  car- 
rier, by  virtue  of  his  relation,  has  no  authority  to  sell  the  goods, 
and  a  sale  by  him,  without  other  authority,  will  not  convey  title,^* 
even  to  a  good  faith  purchaser.  Nor  can  he  sell  them  to  satisfy 
his  lien,  but  must  have  them  sold  by  legal  proceedings.-^  Under 
a  sudden  emergency,  or  in  the  case  of  absolute  necessity,  the  car- 
rier may  have  authority  to  sell  as  the  agent  of  the  owner,  but  not 
as  carrier,-^  as  for  instance  in  the  case  of  perishable  goods,  which, 
if  not  sold,  would  perish  before  other  disposition  could  be  made 
of  them.-^  It  is  held  that  in  every  contract  to  carry  for  freight 
there  is  an  implied  obligation  on  the  part  of  the  shipowner  that 
in  the  event  of  any  disaster  happening  to  the  ship  or  cargo  in  a 
port  where  correspondence  cannot  be  had  with  the  freighter,  the 

"Phoenix   Ins.  Co.  v.   Erie  &   W.  45  Am.  St.  674,  11  Lewis  Am.  R.  & 

Transp.  Co.,  117  U.  S.  312,  29  L.  ed.  Corp.  642;  Inman  v.  S,  Car.  R.  Co., 

873,  6  Sup.  Ct.  750,  1176;  Orient  Mut.  129  U.  S.  128,  32  L.  ed.  612,  9  Sup. 

Ins.  Co.  V.  Adams,   123  U.  S.  67,  31  Ct.  249. 

L.  ed.  63,  8  Sup.  Ct.  68.  ^  Lickbarrow  v.  Mason,  6  East  21 ; 

^"Hutchinson     Carriers     (3d     ed.).  White  v.  Webb,  15  Conn.  302;  Doane 

§  783.  V.  Russell,  3  Gray  (Mass.)   382;  Ag- 

^  Pennefeather  v.  Baltimore  Steam-  new  v.  Johnson,  22   Pa.    St.  471,  62 

Packet  Co.,  58  Fed.  481;  Home  Ins.  Am.   Dec.   303;    Miller    Piano    Co.   v. 

Co.  V.   Minneapolis,   St.    P.   &   S.   R.  Parker,  155  Pa.  St.  208,  26  Atl.  303, 

Co.,   71    Minn.   296,   74   N.    W.    140;  35  Am.  St.  873. 

Stilwell  V.  Staples,  19  N.  Y.  401.  ^Indianapolis  &   St.   Louis   R.   Co. 

^^  Mercantile    Mutual    Ins.    Co.    v.  v.  Herndon,  81  111.  143;  Hunt  v.  Has- 

Calebs,  20  N.  Y.   173;   Missouri  Pac.  kell,  24  Maine  339,  41  Am.  Dec.  387; 

R.    Co.   V.    International   Marine   Ins.  Briggs   v.   Boston   &   Lowell   R.    Co., 

Co.,  84  Tex.  149,  19  S.  W.  459;  Mer-  6   Allen    (Mass.)    246.   83   Am.   Dec. 

chants'  Cotton   Press   Storage  Co.  v.  626;  Rankin  v.  Memphis  8z  Cincinnati 

Ins.   Co.   of   North   America,   151  U.  Packet  Co.,  9  Heisk.  (Tenn.)  564,  24 

S.  368,  38  L.  ed.  195,  14  Sup.  Ct.  367.  Am.  Rep.  339. 

=^The     Seaboard,     119     Fed.     375;  'niechem   Agency,    §   481. 

Willock  V.  Pennsylvania  Co.,  166  Pa.  "  Rankin  v.   Memphis  &  Cincinnati 

St.  184,  30  Atl.  948,  27  L.  R.  A.  228,  Packet  Co.,  9  Heisk.  (Tenn.)  564,  2'1- 


238  BAILMENTS. 

master  shall  act  as  his  agent,  and  use  his  best  efforts  for  the  pro- 
tection and  preservation  of  the  cargo. ^^  The  purchaser  at  such 
a  sale  must  show  clear  authority  on  the  part  of  the  carrier  to 
sell,  that  is,  that  the  sale  was  necessary,  because  the  property  was 
so  perishable  that  it  was  impossible  to  preserve  it  for  the  owner, 
or  that  it  was  impossible  to  carry  it  farther  or  to  store  it;  that 
the  carrier  had  acted  in  good  faith  and  with  sound  discretion; 
and  that  it  was  impossible  to  communicate  with  the  owner, 
and  receive  his  instructions,  without  a  delay  which  the  con- 
dition of  the  property  and  the  circumstances  would  not  permit.^* 
If  the  sale  was  not  necessary  and  justifiable,  the  carrier  is  liable 
for  conversion.^'*  It  is  said  that  the  degree  of  necessity  which 
justifies  such  a  sale  is  "supreme",  "urgent",  or  "absolute",^^  and 
it  must  appear  besides  the  other  elements  named  that  the  sale 
must  be  made  where  there  is  a  market  and  competition  in  buying, 
so  that  where  those  who  saved  a  crew  and  cargo  about  to  become 
derelict  in  a  distant  ocean  made  a  bargain  with  the  master  by 
which  they  bought  the  goods  for  a  nominal  figure,  it  was  held  that 
they  were  entitled  only  to  salvage  money  and  freight,  and  that 
their  title  was  bad.^^  So  a  master  of  a  vessel  may  throw  over- 
board, or  sacrifice  goods,  but  he  cannot  give  them  away.®^ 

§  224.  Right  to  know  character  of  goods  offered  for  car- 
riage.— It  is  the  general  rule  that  the  carrier  has  no  right  to 
demand,  as  a  prerequisite  to  their  carriage,  to  know  the  character 
of  goods  which  are  offered,  if  the  goods  or  packages  are  of  the 
kind  which  he  usually  carries,^*  but  he  may  inquire  the  value,  in 
order  to  fix  his  charge  and  to  know  the  amount  of  responsibility 

Am.   Rep.   339;   Arthur  v.    Schooner  Ann,  13  Pet.   (U.  S.)  387,  10  L.  ed. 

Cassius,  2  Story  (U.  S.)  81;  Dudley  213. 

V.   Chicago.   M.  &  St.   P.   R.   Co.,  58  '"Cannan  v.  Meaburn,  1  Bing.  243; 

W.  Va.  604.  52  S.  E.  718,  3  L.  R.  A.  Myers  v.   Baymore,    10   Pa.    St.    114, 

(N.  S.)  1135,  112  Am.  St.  1027.  Stat-  49  Am.  Dec.  586. 

ute  may  give  this   right   where   con-  ^^  Hutchinson     Carriers      (3d    ed.), 

signee  refuses  to  receive.  Chesapeake  §  792. 

&  O.   R.   Co.  V.   Saulsberry.    126  Ky.  ''Post  v.  Jones,   19  How.    (U.   S.) 

179,  103  S.  W.  254,  12  L.  R.  A.   (N.  150,  15  L.  ed.  618. 

S.)   431n.  ''The  Albany,  44  Fed.  431. 

'^Notara    v.    Henderson,    L.    R.    5  '*  Crouch  v.  The  London  &  North- 

Q.  B.  346.  western    R.    Co..   7    Exch.   705;    The 

^Hutchinson     Carriers      (3d   ed.),  Nitro-Glycerin    Case,    15    Wall.     (U. 

§  790;  Butler  v.  Murray,  30  N.  Y.  88;  S.)   524,  21  L.  ed.  206. 
New  England  Ins.  Co.  v.  Brig  Sarah 


THE    carrier's    RIGHTS.  239 

assiimed.^'^  Still,  if  one  offers  for  shipment  goods  which  are 
or  might  become  dangerous  to  the  person  or  property  of  other 
persons  carried,  it  is  his  duty  to  make  such  character  known,  for 
the  carrier  is  not  bound  to  carry  such  goods  unless  he  holds  him- 
self out  as  carrying  them.^''  This  rule  applies  where  the  carrier 
believes  goods  are  contraband.^^  Only  when,  upon  good  grounds, 
the  carrier  believes  that  a  package  contains  dangerous  goods,  is  he 
authorized  to  demand  before  cariying  that  the  contents  be  made 
known.^^  If  the  goods  of  other  shippers  are  damaged  by  dan- 
gerous goods,  the  carrier  is  Hable  to  them,  and  at  the  same  time 
has  his  remedy  against  the  shipper,^*  and  even  if  the  latter  did 
not  know  the  dangerous  character,  he  is  conclusively  presumed  so 
to  have  known,  and  it  has  been  said  that  in  every  shipment  there 
is  an  implied  contract  by  the  shipper  that  his  goods  are  not  of  a 
kind  to  injure  those  of  others.*" 

§  225.  Shipper's  failure  to  deliver. — If  a  party  contracts 
to  deliver  goods  to  a  carrier  for  transportation  and  fails  to  de- 
liver, it  is  held  that  the  carrier  has  an  action  for  the  damages  sus- 
tained, but  would  be  bound  to  use  diligence  to  obtain  other  goods 
to  carry.*^ 

§  226.  The  carrier's  lien. — The  carrier's  lien  is  a  right  to 
keep  possession  of  the  goods  until  charges  for  freight  and  ad- 
vances made  have  been  paid,  and  is  practically  similar  to  the  lien 
of  any  other  bailee  who  has  performed  labor  on  goods  or  spent 
money  on  them  at  the  owner's  request.  The  owner  has  no  right 
to  possession  of  the  goods  until  he  has  paid  these  charges,  or  ten- 
dered payment,  and,  generally  speaking,  the  carrier  has  no  right 
to  the  payment  of  them  until  the  goods  are  tendered  to  the  con- 
signee.^^    The  carrier's  lien  is  specific,  confined  to  the  charges 

'"Merchants'  Despatch  Transp.  Co.  "The      Nitro-Glycerin      Case,      15 

V.  Bolles,  80  111.  473;  Sheldon  v.  Rob-  Wall.    (U.   S.)   524,  21   L.  ed.  206. 

inson,  7  N.  H.  157,  26  Am.  Dec.  726 ;  '"  Brass   v.    Maitland,   6   El.   &   Bl. 

Baldwin  v.  Liverpool  &  Great  West-  470. 

em  Steamship  Co.,  74  N.  Y.   125,  30  '"Pierce     v.     Winsor,     2     Sprague 

Am.  Rep.  277;   Brown  v.  The  Cam-  Dec.   (U.  S.)  35. 

den   &   Atlantic    R.   Co.,   83    Pa.    St.  "Hunter  v.  Fry,  2  B.  &  Aid.  421; 

316.  Cockburn  v.  Alexander,  6  C.  B.  790; 

^"The     Nitro-Glycerin     Case,      15  Harries  v.  Edmonds,  1  C.  &  K.  686; 

Wall.  (U.  S.)  524,  21  L.  ed.  206.  Bixby  v.  Bennett,  3  Daly  (N.  Y.)  225. 

^^  Adams    Exp.    Co.    v.     Common-  *^  Clarkson    v.    Edes,    4    Cow.    (N. 

wealth,  33  Ky.  L.  967,  112  S.  W.  577,  Y.)     470;     Barker     v.     Havens,     17 

18  L.  R.  A.  (N.  S.)  1182.  Johns.  (N.  Y.)  234,  8  Am.  Dec.  393; 


240 


BAILMENTS. 


and  advances  upon  the  particular  goods  upon  which  it  is 
claimed,*^  and  he  has  no  claim  upon  any  goods  for  other  amounts 
which  may  be  owed  him  by  the  shipper/* 

Such  special  lien  is  favored  by  the  courts,  as  opposed  to  gen- 
eral liens,  which  are  not  favored,  and  the  presumption  is  that  the 
carrier's  lien  continues  to  exist  until  it  is  shown  clearly  that  it  has 
been  waived  or  lost/^  The  lien  extends  only  to  charges  for  or 
incident  to  transportation,^®  which  includes  legal  import  duties,*^ 
and  salvage  charges,*®  but  not  warehouse  charges.*^  It  also  in- 
cludes advances  made  to  preceding  carriers  for  the  part  of  the 
transportation  performed  by  them,  and  the  last  carrier  may  refuse 
to  deliver  the  goods  unless  such  advances  are  paid,^°  or  unless  he 
is  shown  or  knows  that  the  preceding  carriers  were  prepaid.^^ 
So,  if  the  first  carrier  employs  a  second  to  complete  the  con- 
tract, the  second  is  entitled  to  a  lien,"  unless  the  first  has  been 
paid  for  the  service^^  or  had  no  authority  to  forward  beyond  his 
own  line.^*     But  as  against  the  owner  who  is  not  in  fault,  the 


Bowman  v.  Hilton,  11  Ohio  303; 
Ewart  V  Kerr,  Rice  L.  (S.  Car.) 
203;  Dyer  v.  Grand  Trunk  R.  Co., 
42  Vt.  441,  1  Am.  Rep.  350;  Ware- 
house &  Builders  Supply  Co.  v. 
Galvin,  96  Wis.  523,  71  N.  W.  804, 
65  Am.  St.  57. 

^Tharr  v.  Collins,  35  La.  Ann. 
939,  48  Am.  Rep.  251;  Pennsylvania 
R.  Co.  V.  American  Oil  Works,  126 
Pa.  St.  485,  17  Atl.  671,  12  Am.  St. 
885;  Bacharach  v.  Chester  Freight 
Line.  133  Pa.  St.  414,  19  Atl.  409. 

"  Rushforth  v.  Hadfield,  6  East  519; 
IMcFarland  v.  Wheeler,  26  Wend.  (N. 
Y.)  467;  Bacharach  v.  Chester 
Freight  Line,  133  Pa.  St.  414,  19  Atl. 
409;  note  in  42  Am.  &  Eng.  R.  Cas. 
364. 

*' Hutchinson  Carriers  (3d  ed.), 
§  865. 

"  Payne  v.  Ralli,  74  Fed.  563 ;  Illi- 
nois Cent.  R.  Co.  v.  Alexander,  20 
111.23;  :Miller  V.  Mansfield.  112  Mass. 
260;  The  Virginia  v.  Kraft,  25  Mo. 
76;  Berry  Coal  &c.  Co.  v.  Chicago, 
P.  &  St.  L.  R.  Co.,  116  Mo.  App.  214, 
92  S.  W.  714. 

"Guesnard  v.  Louisville  &  N.  R. 
Co..  76  Ala.  453,  23  Am.  &  Eng.  R. 
Cas.  691;  Wabash  R.  Co.  v.  Pearce, 
192  U.  S.  179,  48  L.  ed.  397. 


♦'Chicago  &  S.  W,  R.  R.  Co.  v. 
Northwestern  Union  Packet  Co.,  38 
Iowa  Zn . 

*"  Winchester  v.  Busby,  16  Can. 
Sup.  Ct.  336;  Lambert  v.  Robinson, 
1  Esp.  119;  Steamboat  Virginia  v. 
Kraft,  25  Mo.  76. 

^ElHott  R.  R.  (2d  ed.),  §§  1569- 
70;  Bissel  v.  Price,  16  111.  408;  Cave 
v.  Pool's  Assignee,  108  Ky.  124,  55 
S.  W.  887,  49  L.  R.  A.  251,  94  Am. 
St.  348;  Wells  v.  Thomas,  27  JNIo. 
17,  72  Am.  Dec.  228. 

"  Converse  Bridge  Co.  v.  Collins, 
119  Ala.  534,  24  So.  561;  American 
Nat.  Bank  v.  Georgia  R.  Co.,  96  Ga. 
665,  23  S.  E.  898,  51  Am.  St.  155; 
Travis  v.  Thompson,  :il  Barb.  (N. 
Y.)  236;  Marsh  v.  Union  Pac.  R. 
Co.,  3   McCrary    (U.    S.)    236. 

'"Nordemeyer  v.  Loescher,  1  Hilt. 
(N.  Y.)  499. 

« Matthews  v.  Gibbs,  3  El.  &  El. 
282. 

"Denver  &c.  R.  Co.  v.  Hill,  13 
Colo.  35,  21  Pac.  914,  4  L.  R.  A.  376; 
Crossan  v.  New  York  &  N.  E.  R.  Co., 
149  Mass.  196,  21  N.  E.  367,  3  L.  R. 
A.  1(^6,  14  Am.  St.  408,  40  Am.  & 
Eng.  R.  Cas.  136  and  note;  Liefert 
v.  Galveston  &c.  R.  Co.  (Tex.  Civ. 
App.),  57  S.  W.  899. 


THE    CARRIERS   RIGHTS.  24 1 

carrier  has  no  right  to  a  Hen  upon  goods  carried  for  one  wrong- 
fully in  possession,  who  had  no  authority  to  ship  them.^'*  But,  if, 
by  fault  of  the  shipper  or  his  agent,  the  goods  are  taken  to  a 
wrong  destination,  or  over  a  wrong  route,  the  carrier  has  a  lien 
for  freight.^* 

The  lien  is  lost  by  surrendering  the  goods  unconditionally,^^ 
and  this  rule  applies  if  goods  are  surrendered  to  consignee  as 
agent  of  consignor,  on  consignee's  promise  to  return  goods  until 
the  charges  are  paid,*^^  or  if  a  delivery  is  made  to  consignee  as 
agent  of  carrier,  then  the  carrier's  lien  is  lost  when  the  consignor 
pays  the  consignee.^®  There  may  be  a  conditional  delivery  with 
an  understanding  that  the  carrier  reserve  the  lien,^*'  but  if  the 
carrier  merely  intended  to  hold  a  lien,  and  did  not  apprise  the 
consignee  of  such  fact,^^  or  if  he  refuses  to  deliver  on  other 
grounds^^  without  claiming  a  lien,  he  has  waived  the  lien.  A  de- 
livery of  goods  to  assignee  for  benefit  of  creditors  of  the  con- 
signee is  not  a  waiver  of  the  lien,  for  the  assignee  is  considered  to 
hold  the  goods  for  the  carrier,  as  well  as  the  other  creditors." 
If  the  carrier  delivers  a  part  of  the  goods,  he  still  has  a  lien  for 
the  entire  freight  upon  the  portion  remaining.*'*    Or  where  the 

"  Savannah,  Florida  &  Western  R.  7  Am.  &  Eng.  Ann.  Cas.  960  and  note 

Co.  V.  Talbot,  123  Ga.  378,  51  S.  E.  *"CostelIo  v.  Seven  Hundred  Thir- 

401,  3  Am.  &  Eng.  Ann.  Cas.    1092;  ty-four    Thousand    Seven    Hundred 

Robinson  v.  Baker,  59  Mass.  137,  51  Laths,  44  Fed.  105 ;  McBrier  v.  Cargo 

Am.  Dec.  54;  Pingree  v.  Detroit  &c.  of    Hard    Coal,   69    Fed.   469;    The 

R.  Co.,  66  Mich.  143,  33  N.  W.  298,  Eddy,  5  Wall.  (U.  S.)  481,  18  L.  ed. 

11  Am.   St.  479;  Kohn  v.  Richmond  486;   Bags  of  Linseed,  1  Black.    (U. 

&c.   R.   Co.,   37   S.   Car.   1,   16   S.   E.  S.)   108. 

376,  24  L.  R.  A.  100,  34  Am.  St.  726.  '^^  The   Tan    Bark    Case,    1    Brown 

'^Fordyce  v.  Johnson,  56  Ark.  430,  Adm.    (U.    S.)    151,    Fed.    Cas.    No. 

19  S.  W.  1050 ;  Crossan  v.  New  York  13742. 

6  N.  E.  R.  Co.,  149  Mass.  196,  21  "'Adams  Exp.  Co.  v.  Harris,  120 
N.  E.  367,  3  L.  R.  A.  766,  14  Am.  St.  Ind.  73,  21  N.  E.  340,  7  L.  R.  A. 
408.  214,  16  Am.  St.  315,  40  Am.  &  Eng. 

"Gregg  V.  Illinois  Central  R.  Co.,  R.  Cas.  151;  Leigh  v.  Mobile  &c.  R. 

147  111.  550.  35   N.  E.  343,  37  Am.  Co.,  58  Ala.  165. 
St.  238;  Reineman  v.  Covington  &c.        *^Caye  v.  Pool's  Assignee,  108  Kv. 

R.  Co.,  51  Iowa  338,  1  N.  W.  619;  124,  55  S.  W.  887,  49  L.  R.  A.  251, 

Sears  v.  Wills,  4  Allen  (Mass.)  212;  94  Am.  St.  348. 

Bigelow  V.  Heaton,  4  Denio  (N.  Y.)        **  New  Haven  &  Northampton  Co. 

496.  V.  Campbell,   128  Mass.   104,  35   Am. 

^*  Lembeck  v.  Jarvis  Terminal  Cold  Rep.    360 ;    Lane    v.    Old    Colony    R. 

S.  Co.,  69  N.  J.  Eq.  781,  63  Atl.  257,  Co.,    14    Grav    flMass.)     143:    Fuller 

7  Am.  &  Eng.  Ann.  Cas.  960  and  v.  Bradley.  25  Pa.  St.  120.  See  Jef- 
note.  fries    v.    Fitchburg    R.    Co.,   93    Wis. 

^»  Lembeck  v.  Jarvis  Terminal  Cold  250.  67  N.  W.  424,  33  L.  R.  A.  351, 
S.  Co.,  69  N.  J.  Eq.  781,  63  Atl.  257,    57  Am.  St.  919. 

Bailments — 16 


242  BAILMENTS. 

delivery  is  obtained  by  trick  or  fraud,  or  a  promise  to  pay  as 
soon  as  the  delivery  is  made,  the  lien  is  not  lost.^^ 

The  carrier's  lien  is  prior  to  the  claims  of  general  creditors'''' 
or  to  the  right  of  the  vendor  of  goods  to  stoppage  in  transitu. *^^ 
If  through  any  cause  for  which  the  carrier  is  liable,  the  goods 
are  injured  and  the  damage  is  equal  to  or  greater  than  the 
freight  charges,  the  lien  is  destroyed,^^  The  lien  may  be  waived 
by  an  agreement  for  payment  of  freight  at  a  time  later  than  the 
date  of  delivery,  or  where,  from  the  contract,  the  payment  is 
necessarily  to  be  made  after  delivery.^^  But  where  the  terms  of 
the  special  contract  are  not  such  that  payment  before  delivery  of 
the  goods  is  clearly  inconsistent  with  its  terms,  the  carrier  has 
not  waived  his  lien,  for  there  is  a  presumption  in  favor  of  its 
existence,  which  is  only  overcome  by  clear  evidence.''*  If  the 
goods  have  been  carried  to  the  destination,  and  the  owner  or  the 
consignee  refuses  to  pay  the  freight,  and  accept  them  within  the 
contract  time,  or  in  the  absence  of  stipulation,  within  a  reason- 
able time,  the  carrier  may  store  the  goods  in  a  warehouse  at  the 
expense  of  the  consignee,  subject  to  his  lien  for  freight,  the  pos- 
session of  the  warehouseman  being  that  of  the  carrier.^^  Prop- 
erty of  the  United  States  government  is  subject  to  lien,  as  that  of 
a  private  person.^-  It  seems  that  a  tender  of  the  charges  de- 
manded by  the  carrier  discharges  the  lien.^^     The  carrier's  lien 

*=  Wallace  v.  Woodgate,  Ry.  &  M.  *  Pinney  v.   Wells,    10   Conn.    104; 

193;    Hays   v.   Riddle,    1    Sandf.    (N.  Chandler   v.    Belden,    18   Johns.    (N. 

Y.)  248;  Bigelow  v.  Heaton  (N.  Y.),  Y.)    157,  9  Am.   Dec.    193;   Raymond 

4  Denio  (N.  Y.)  496,  6  Hill  (N.  Y.)  v.  Tyson,  17  How.  (U.  S.)  53,  15  L. 

43;  One  Hundred  Fifty-one  Tons  of  ed.  47;   The  Eddy,  5  Wall.    (U.   S.) 

Coal,  4  Blatch.   (U.  S.)   368.  481,  18  L.  ed.  486. 

**Rucker  V.  Donovan,  13  Kans.  251,  ^"Howard    v.    MaCondray,    7    Gray 

19  Am.  Rep.  84;  Cooley  v.  Minnesota  (Mass.)   516;  The  Bird  of  Paradise, 

Transfer    R.    Co.,   53    Minn.   327,    55  5/ Wall.   (U.  S.)   545;  The  Schooner 

N.  W.  141,  39  Am.  St.  609;  Santa  Fe  Volunteer,  1  Sumn.  (U.  S.)  551. 
Pac.   R.   Co.   V.   Bossut,   10  N.   Mex.'"*     "Gregg   v.    Illinois    Cent.    R.    Co., 

322,  62  Pac.  977.                                    ■  147   III,  550,   35   N.   E.   343,   37   Am. 

"2    Kent's    Com.    541;    Morley    v.  St.  ^238;    Alden   v.    Carver,    13    Iowa 

Hay,  3  M.  &  R.  696;   Oppenheim  v.  253,     81     Am.     Dec.     430;     Western 

Russell,  3  Bos.  &  P.  42;  Pennsylvania  Transp.  Co.  v.  Barber.  56  N.  Y.  544; 

R.   Co.  V.  American  Oil  Works,   126  The  Eddv,  5  Wall.    (U.  S.)   481,   18 

Pa.  St.  485,  12  Am.  St.  885.  L.  ed.  486. 

** Missouri    Pac.    R.    Co.    v.    Peru-  "Union    Pac.    R.    Co.    v.    United 

Van  Zandt  Co..  73  Kans.  295,  85  Pac.  States,  2  Wvo.  170. 

408.  87  Pac.  80.  6  L.  R.  A.    (N.   S.)  "" Hutchinson     Carriers     (3d    ed.), 

1058,  117  Am.  St.  468,  9  Am.  &  Eng.  §  887,  citing  Martindale  v.   Smith.  1 

Ann.  Cas.  790;  Dyer  v.  Grand  Trunk  Q.  B.  389    and  Movnahan  v.  Moore, 

R.  Co.,  42  Vt.  441.  1  Am.  Rep.  350.  9  Mich.  9,  77  Am.  Dec.  468n. 


THE    CARRIER  S   RIGHTS.  243 

is  not  assignable,  is  a  personal  right,  and  does  not  pass  by  sale,  or 
pledge  or  any  other  tortious  transfer  of  the  goods  by  the  car- 
rier.'* He  cannot  sell  the  goods  for  the  lien,  but  if  the  lien  is  not 
paid,  the  goods  must  be  sold  by  judicial  process. ^^  This  is  the 
general  rule,  but  there  are  statutes  in  some  states  authorizing  a 
sale  to  satisfy  the  lien  by  proceeding  in  a  certain  way  without 
resorting  to  the  courts.'^  Although  the  lien  is  waived,  the  car- 
rier may  still  sue  at  law  to  recover  its  charges.^' 

"Hutchinson     Carriers     (Srded.),  ^^  See   4    Elliott   R.    R.    (2d    ed.), 

§  888  and  cases  cited.  §  1571. 

"  See     cases     cited    in    last    note.  "  Gait    v.    Archer,    7    Grat.     (Va.) 

Myers  v.  Baymore,  10  Pa.  St.  114,  49  307,     See  also,  Elliott  R.  R.  (2d  ed.), 

Am.   Dec.   586;   Liefert  v.   Galveston  §   1559;  cases  cited  in  first  note   18, 

&c.  R.  Co.   (Tex.  Civ.  App.),  57  S.  this  chapter. 
,W.  899, 


CHAPTER  XIV. 


TERMINATION  OF  THE  RELATION  OF  CARRIER. 


§  227.  Termination  of  the  relation        243. 
of  carrier. 

228.  Delivery  to  right  person.  244. 

229.  Place  of  delivery. 

230.  Where  goods  are  shipped  to 

a  certain  place.  245. 

231.  Delivery  as  warehouseman.  246. 

232.  Delivery  by  water  carriers.  247. 

233.  Delivery  by  railroads. 

234.  Massachusetts  rule. 

235.  New  Hampshire  rule. 

236.  New  York  rule.  248. 
237.  When  notice  unnecessary  or  249. 
.              immaterial. 

V  238.  When  liability  as  warehouse-         250. 

man  begins. 
'  239.  Liability  as  warehouseman.  251. 

240.  Delivery     by     express   com- 

panies. 252. 

241.  Further  of  delivery — Notice 

to   consignor.  253. 

V  242.  Carrying  goods  C.  O.  D. 


Consignee's  rights  as  to  C. 
O.   D.  shipments. 

Excuses  for  nondelivery — 
Seizure  under  legal  pro- 
cess. 

Stoppage  in  transitu. 

Receipt   for   delivery. 

Delivery  to  connecting  car- 
rier and  liability  of  con- 
necting carrier — In  gen- 
eral. 

Who  is  a  connecting  carrier. 
Contract  for  through  car- 
riage. 

Authority  to  make  through 
contract. 

Which  carrier  is  liable  to 
consignee. 

Compensation  of  connecting 
carriers. 

Delivery  to  connecting  car- 
riers. 


§  227.  Termination  of  the  relation  of  carrier. — The  ter- 
mination of  the  relation  of  carrier  is  naturally  by  delivery  to  the 
consignee,  or  to  a  connecting  carrier.  It  may  be  brought  about 
by  the  delay  of  the  consignee  in  receiving  the  goods,  under  v.^hich 
circumstances  the  relationship  of  warehouseman  may  arise,  or 
by  the  owner's  directing  delivery  back  to  him  before  the  carriage 
contract  is  completed.  Proper  delivery  is  an  element  imposed  by 
law  as  a  part  of  the  obligation  entered  into  by  every  carrier, 
when  he  makes  a  contract  of  carriage,  and  his  extraordinary  lia- 
bility is  terminated  only  by  delivery,  with  certain  exceptions.* 

^Hutchinson     Carriers     (3d     ed),  Southern  Exp.  Co.  v.  Newby,  Id  Ga. 

§  662;  Elliott  R.  R.  (2d  ed.),  §  1517;  635,    91    Am.    Dec.    783;     Smith    v. 

Cavallaro  v.   Texas  R.   Co.,   110  Cal.  Nashua  &c.  R.  Co.,  27  N.  H.  86,  59 

248,    42    Pac.   918,    52    Am.    St.    94 ;  Am.  Dec.  364.    For  general  collection 

244 


TERMINATION    OF    CARRIER    RELATION.  245 

The  general  rule  is  that  a  delivery  must  be  made  to  the  right  per- 
son, at  a  reasonable  time,  and  proper  place,  in  a  proper  manner.'' 

§  228.  Delivery  to  right  person. — The  former  rule  of  law 
was  that  all  common  carriers  except  ships  trading  with  foreign 
countries  must  deliver  personally  to  the  consignee,^  but  even 
then  the  carrier  might  show  an  established  usage  to  the  con- 
trary.* Now,  in  case  of  vessels  and  railroads,  there  is  an  estab- 
lished custom  to  deliver  at  fixed  depots  or  places,^  though  even 
now  a  railroad  carrier  may  be  required  to  make  personal  delivery 
or  delivery  at  a  designated  place  not  a  regular  station,  by  custom 
or  express  contract.*  When  it  is  the  duty  of  a  carrier  to  make  a 
personal  delivery,  it  is  his  duty  to  seek  the  consignee,  and  make  a 
tender  of  the  goods,  and,  if  he  cannot  at  once  find  him,  or  if  he  is 
not  at  the  address  marked  on  the  goods,  he  must  use  reasonable 
diligence  to  find  him.'  There  is  said  to  be  absolutely  no  excuse 
for  the  carrier's  delivery  to  the  wrong  person,  and  he  is  under  the 
duty  of  being  absolutely  certain  as  to  the  person.  No  circum- 
stances of  fraud,  imposition,  or  mistake  will  excuse  him.*  If  he 
has  any  doubt  as  to  a  person  who  applies  for  the  goods,  he 
should  require  positive  proof  of  his  identity,  and  has  the  right 
to  refuse  delivery  until  the  applicant  has  established  his  identity, 
if  he  has  reasonable  grounds  to  doubt  his  right  to  the  goods." 

of  authorities  on  subject  of  this  chap-  'Elliott   R.   R.    (2d   ed.),    §    1518; 

ter,  see  notes,  21  Am.  &  Eng.  Ann.  Vincent  v.  Chicago  &  A.  R.  Co.,  49 

Cas.  531  and  97  Am.  St.  84.  111.  33;  Bahimore  &c.  R.  Co.  v.  Green, 

^Hutchinson     Carriers     (3d     ed.),  25  Md.  72;  State  v.  Republican  Valley 

§  664;   Bartlett  v.  The  Philadelphia,  R.  Co.,  17  Nebr.  647,  24  N.  W.  329, 

32   Mo.   256;    Hill   v.    Humphreys,   5  52  Am.  Rep.  424. 

Watts  &  S.   (Pa.)   123,  39  Am.  Dec.  '  Schroeder    v.    Hudson    River    R. 

117.    See  Brunson  v.  Atl.  Coast  Line  Co.,  5  Duer.  (N.  Y.)  55;  Witbeck  v. 

Co.,  76  S.  Car.  9,  56  S.  E.  538,  9  L.  Holland,  45  N.  Y.  13,  6  Am.  Rep.  23; 

R.  A.  (N.  S.)  577.  Zinn  v.   New  Jersey   Steamboat  Co., 

^Elliott    R.    R.    (2d   ed.),   §    1518;  49  N.  Y.  442,  10  Am.  Rep.  402. 

Gibson  V.  Culver,  17  Wend.   (N.  Y.)  "Southern  R.  Co.  v.  Webb,  143  Ala. 

305,  31  Am.  Dec.  297;  Eagle  v.  White,  304,  39  So.  262,  111  Am.  St.  45,  5  Am. 

6   Whart.    (Pa.)    505,   37   Am.    Dec.  &  Eng.  Ann.  Cas.  97,  and  note  cit- 

434.  ing  authorities  generally;  Mobile  &c. 

*Loveland  v.  Burke,  120  Mass.  139,  R.  Co.  v.  Bay  Shore  Lumber  Co.,  165 

21  Am.  Rep.  507;  Farmers'  &  Mer-  Ala.  610,  51  So.  956,  138  Am.  St.  84; 

chants'   Bank  v.   Champlain   Transp.  Pacific  Exp.  Co.  v.   Shearer,   160  111. 

Co.,  23  Vt.  186,  56  Am.  Dec.  68.  215,  43  N.  E.  816,  37  L.  R.  A.  177,  52 

"Elliott   R.   R.    (2d   ed.),   §    1518;  Am.  St.  324. 

South    and    North    Ala.    R.    Co.    v.  'Hutchinson     Carriers     (3d     ed.), 

Wood,  66  Ala.  167,  41  Am.  Rep.  749,  §   668;    Sellers  v.    Savarnah  &c.   R. 

9  Am.  &  Eng.  R.  Cas.  419,  Co.,  123  Ga.  .386,  51  S.  E.  398. 


246 


BAILMENTS. 


Delivery  to  the  wrong  person  is  a  conversion  even  though  made 
by  innocent  mistake  or  through  fraud  practised  on  the  carrier/** 
So  dehvery  upon  a  forged  order  or  the  Hke  is  a  conversion,"  and 
it  has  been  held  that  delivery  to  one  who  orders  in  a  fictitious 
name  or  assumes  the  name  of  another  is  a  misdelivery.^^  Other 
cases,  in  which  the  shipper  has  been  misled  by  the  one  who 
ordered  the  goods,  but  in  which  they  were  actually  delivered  to 
the  one  who  ordered  them,  and  the  mistake  was  held  to  be  a 
confusion  of  persons  upon  the  shipper's  part,  and  not  a  mistake  of 
the  carrier,  hold  the  carrier  not  liable.^^  Yet  other  courts  have 
taken  an  opposite  view  in  almost  the  same  state  of  facts,  where 
there  were  two  men  of  the  same  name,  or  claiming  to  be  of  the 


"St.  Louis  &  I.  M.  R.  Co.  v. 
Larned,  103  111.  293;  McCulloch  v. 
McDonald,  91  Ind.  240;  Forbes  v. 
Boston  &c.  R.  Co.,  133  Mass.  154,  9 
Am.  &  Eng.  R.  Cas.  76  and  note; 
Hawkins  v.  Hoffman,  6  Hill  (N.  Y.) 
586,  41  Am.  Dec.  767 ;  Powell  v.  Mey- 
ers, 26  Wend.  (N.  Y.)  591.  If  the 
carrier  disobeys  the  shipper's  direc- 
tions as  to  delivery,  he  is  liable  for 
conversion,  though  when  the  goods 
are  restored  to  him  he  offers  to  re- 
turn them  to  the  shipper.  Marshall 
&  Mitchell  Grain  Co.  v.  Kansas  City 
&c.  R.  Co.,  176  Mo.  480,  75  S.  W. 
638,  98  Am.  St.  508. 

"  Gosling  V.  Higgins,  1  Campb.  451, 
10  R.  R.  726;  Southern  Exp.  Co.  v. 
Van  Meter,  17  Fla.  783,  35  Am.  Rep. 
107;  Guillaume  v.  Hamburg  Amer- 
ican Packet  Co.,  42  N.  Y.  212,  1  Am. 
Rep.  512;  Houston  &c.  R.  Co.  v. 
Adams,  49  Tex.  748,  30  Am.  Rep.  116. 

^  The  cases  on  this  point  can 
scarcely  be  reconciled.  In  one  in- 
stance a  person  ordered  goods  in  the 
name  of  a  fictitious  firm,  and  the  car- 
rier's agent  allowed  a  sti:-nger  to  take 
the  goods  without  any  identification 
as  to  the  firm  to  which  they  were 
consigned,  though  he  knew  of  no 
such  firm.  Though  the  one  who  had 
ordered  the  goods  had  intended  to 
defraud  the  shipper,  and  the  goods 
were  delivered  to  the  one  who  had 
actually  ordered  them,  though  by  a 
fictitious  name,  the  carrier  was  held 
liable,  since  ordinary  care^  was  not 
used  to  ascertain  the  identity  of  the 
party.    Price  v.  Oswego  &c.  R.  Co., 


SO  N.  Y.  213,  10  Am.  Rep.  475 ;  sim- 
ilarly, Winslow  V.  Vermont  &c.  R. 
Co.,  42  Vt.  700,  1  Am.  Rep.  365.  An 
express  company  has  been  held  liable 
when  one  sent  a  message  asking  a 
remittance  of  money,  and  the  money 
was  turned  over  to  the  person  who 
sent  the  message,  who  was  a  swin- 
dler, without  requiring  further  proof 
of  identity  than  that  he  had  sent  the 
message  (American  Exp.  Co.  v. 
Fletcher,  25  Ind.  492),  or  even  under 
similar  circumstances  where  the  swin- 
dler, who  had  personated  the  husband 
of  one  Mrs.  Stack,  showed  a  letter 
from  Mrs.  Stack,  to  whom  he  had 
telegraphed  to  forward  certain  goods, 
described  the  goods,  and  still  being 
refused  delivery,  produced  a  person 
known  to  the  agent  of  the  carrier, 
who  identified  the  swindler  as  Stack. 
American  Express  Co.  v.  Stack,  29 
Ind.  27. 

*'The  Drew,  15  Fed.  826;  Edmunds 
V.  Merchants'  Despatch  Transp.  Co., 
135  Mass.  283,  16  Am.  &  Eng.  R.  Cas. 
250;  Wilson  v.  Adams  Exp.  Co.,  27 
Mo.  App.  360.  Where  a  stranger  in 
a  certain  town  opened  a  store  in  the 
name  of  A.  Swannick.  and  ordered 
cigars  in  that  name,  there  being  a 
cigar  merchant  named  Arthur  Swan- 
nick  known  to  the  vendor  in  the  city 
with  whom  the  shipper  thought  him- 
self dealing,  and  the  carrier  first 
sought  Arthur  Swannick  to  deliver 
the  cigars  to  him,  and  he  refused  to 
receive  them,  and  delivery  was  then 
made  to  the  man  doing  business  as 
A.  Swannick,  to  whom  they  were  con- 


TERMINATION    OF    CARRIER    RELATION.  247 

same  name.^^  If  there  are  really  two  men  of  the  same  name, 
and  delivery  is  made  to  the  wrong  one  through  error  in  direc- 
tions, the  carrier  is  not  liable.^^  If  the  property  is  consigned  to 
the  consignee  in  care  of  an  agent  of  the  carrier,  or  the  agent  of 
the  carrier  can  be  held  to  be  the  agent  of  the  consignee,  a  delivery 
to  such  agent  seems  to  terminate  the  relation  of  carrier/^  If 
shipped  to  the  consignee  in  care  of  another,  the  delivery  should  be 
made  to  the  consignee,  but,  if  he  cannot  be  found,  to  the  one  in 
wdiose  care  they  were  consigned,^^  and  a  delivery  to  the  one  in 
whose  care  they  are  shipped  is  a  good  delivery.^* 

If  the  goods  are  misdirected,  the  carrier  is  not  liable,  except  for 
negligence,^^  unless  he  actually  knows  the  correct  direction,  or 
by  the  use  of  ordinary  diligence  could  have  found  it  out.-" 
Where  one  address  is  written  on  the  package,  and  another  on  the 
receipt,  it  is  no  defense  if  the  address  on  the  package  is  correct, 
and  the  carrier  has  made  the  mistake  in  writing  the  receipt.  If 
the  package  is  incorrectly  addressed,  and  the  correct  address 
is  written  in  the  receipt,  evidence  is  admissible  to  the  effect  that 

signed,  the  carrier  was  held  not  liable,  was  liable.    In  this  case  the  directions 

Samuel  v.  Cheney,  135  Mass.  278,  46  were  ambiguous,  not  clear  as  in  the 

Am.  Rep.  467.  case   just   cited.     McCulloch   v.   Mc- 

"  Pacific  Exp.  Co.  v.   Shearer,  160  Donald,  91  Ind.  240. 

111.  215,  43  N.  E.  816,  37  L.  R.  A.  177  "Fitzsimmons    v.     Southern    Exp. 

and  note,  52  Am.  St.  324.  Co.,  40  Ga.  330,  2  Am.  Rep.  577 ;  Ben- 

"  Goods  were  billed  by  the  shipper,  nett  v.   Northern   Pac.   Exp.   Co.,   12 

who  resided  at  the  place  of  shipment,  Ore.  49,  6  Pac.  160.    But  see  Russell 

to  himself,  L.   Singer,  at  Springfield,  v.  Livingston,  16  N.  Y.  515. 

Illinois,  as  he  had  done  in  the  past,  "  Schlesinger  v.  West  Shore  R.  Co., 

the  goods  being  received  for  h  m  by  88  111.  App.  273 ;  United  States  Exp. 

one  G.    There  was  an  L.  Singer  do-  Co.  v.  Hammer,  21  Ind.  App.  186,  51 

ing  business   in    Springfield,   Illinois,  N.  E.  95(5. 

and  though  the  carrier's  agent  knew  ^*  Where  goods  are  shipped  in  caie 

that  the  consignor  and  consignee  were  of  an  express  company,   delivery   to 

of   the   same  name,   he   delivered   to  such   company  is   a   proper   delivery, 

the   latter   L.    Singer,   and   since  the  Commonwealth  v.  People's  Exp.  Co., 

shipping  directions  were  not  doubtful,  201  Mass.  564,  88  N.  E.  420,  131  Am. 

and  were  followed,  the  delivery  was  St.  416. 

good.       Singer     v.     Merchants'     &c.  "Elliott   R.   R.    (2d   ed.),   §    1535; 

Transp.  Co.,  191  Mass.  449.  11  N.  E.  Erie  R.  Co,  v.  Wilcox,  84  111.  239.  25 

882,    114    Am.    St.    635.     But   where  Am.  Rep.  451;  Southern  Exp.  Co.  v. 

goods  were  consigned  to  "E.  Kline"  at  Kaufman,  12  Heisk.  (Tenn.)  161. 

Louisville,  and  the  wrong  street  was  ""Mahon  v.  Blake,  125  Mass.  477; 

named  as  his  address,  a  delivery  to  Guilbaume  V.  Transp.  Co.,  100  N.  Y. 

"T.    Kling"    at    such    address    was    a  491. 
misdelivery    for    which    the    carrier 


248  BAILMENTS.  " 

the  address  is  incorrect  on  the  package,  and  the  carrier  attempted 
to  deliver  at  such  address.^^ 

The  carrier  is,  as  we  have  seen,  required  to  dehver  in  accord- 
ance with  the  bill  of  lading,  and  is  held  absolutely  liable  for 
failure  to  comply  with  its  directions,  and  cannot  safely  deliver 
goods  without  production  of  the  bill  of  lading  as  evidence  of 
title.^^  He  is  liable  for  delivery  upon  an  unindorsed  bill  taken  out 
in  the  name  of  the  consignor-^  unless  he  can  show  a  binding 
custom  to  deliver  goods  billed  straight  to  the  consignee  and  not 
to  his  or  the  consignor's  order  upon  production  of  way-bill.^*  If 
the  shipment  is  under  bill  of  lading  "to  order"  of  shipper,  "noti- 
fy" X,  and  has  draft  attached  drawn  by  shipper,  and  the  carrier 
delivers  to  X  without  surrender  of  bill  of  lading  properly  in- 
dorsed, and  without  the  shipper's  order,  he  is  liable  for  full  value 
to  the  shipper,  for  a  carrier  delivers  at  variance  with  bill  of  lading 
drawn  "to  order"  at  his  peril.-^  When  the  carrier  has  notice  of 
the  true  owner  claiming  under  the  consignee,  and  the  bill  of  la- 
ding has  been  surrendered,  he  must  deliver  to  the  true  owner,  a 
bank  which  advanced  upon  drafts.'*^  Wrongful  delivery  may  be 
ratified  by  the  owner.-^ 

§  229.  Place  of  delivery. — Delivery  must  be  made  at  a 
proper  place. "^  In  the  case  of  a  railroad  carrier,  it  is  generally 
at  the  depot,  or  warehouse  at  the  station,  to  which  it  is  shipped."' 
But  delivery  may  be  made  elsewhere,  by  contract  with  the  ship- 

^^Cappel  V.  Weir,  46  Misc.  (N.  Y.)  Co.,  72  S.  Car.  251,  51  S.  E.  695,  110 

441,  92  N.  Y.  S  365,  45  Misc.  (N.  Y.)  Am.    St.   600. 

419,  90  N.  Y.  S.  394.  '"  National  Newark  Banking  Co.  v. 

=^  Elliott   R.   R.    (2d  ed.),  §§   1426,  Delaware  &c.  R.  Co.,  70  N.  J.  L.  774, 

1523.     See  ante,  §  145  et  seq.  58  Atl.  311,  66  L.  R.  A.  595,  103  Am. 

^  Weyand  v.  Atchison  &c.  R.  Co.,  St.  825. 

75  Iowa  573,  39  N.  W.  899.  1  L.  R.  A.  "  Dobbin    v.    Mich.    Cent.    R.    Co., 

650n,  9  Am.  St.  504  and  note.  56  Mich.  522,  23  N.  W.  204;  Converse 

'*  Forbes  v.  Boston  &c.  R.  Co.,  133  v.  Boston  R.  Co.,  58  N.  H.  521;  Reyn- 

Mass.  154,  9  Am.  &  Eng.  R.  Cas.  76,  olds  v.  New  York  Cent.  &c.  R.  Co., 

80.     A  shipper  who  for  more  than  a  3  N.  Y.  S.  331 ;  Cleveland,  P.  R.  Co. 

year  has  been  permitting  delivery  of  v.  Sargent,  19  Ohio  St.  438. 

goods  without  surrender  of  the  bill  ==*  Elliott    R.    R.    (2d   ed.),   §    1519; 

of    lading    cannot    hold    the    carrier  Bachant  v.  Boston  &  M.  R.  Co.,  187 

liable  for  goods  so  delivered  and  not  Mass.  392,  IZ  N.  E.  642,  105  Am.  St. 

paid  for.     Salberg  v.  Pennsvlvania  R.  408. 

Co.,  228  Pa.  641,  11  Atl.  1007,  31  L.  =' Ray    Freight    Carriers,    p.    888; 

R.  A.  (N.  S.)  1178.  Norway  Plains  Co.  v.  Boston  &c.  R. 

''General  Elec.  Co.  v.  Southern  R.  Co.,    1    Gray    (Mass.)    263,   61    Am. 

Dec.  423. 


TERMINATION    OF    CARRIER    RELATION.  249 

per,^''  direction  of  consignee,"''^  or  custom  to  deliver  at  a  public 
warehouse  or  elevator,  known  and  acquiesced  in  by  parties. ^- 

§  230.     Where  goods  are  shipped  to  a  certain  place. — If! 

there  is  a  station  and  a  village  near,  both  of  the  same  name,  it  is 
held  that  unloading  in  the  carrier's  freight  shed  at  the  usual 
place  at  the  station  terminated  the  carrier's  liability.^^  If  goods 
are  shipped  where  the  carrier  has  no  depot  and  no  agent,  they 
may  be  left  on  a  sidetrack,  and  if  there  is  no  sidetrack,  freight, 
which  is  not  perishable,  such  as  a  carload  of  bricks,  may  be 
unloaded  on  the  ground,  even  though  the  consignee  is  not  pres- 
ent, and  the  carrier  could  not  rightfully  carry  the  goods  to  the 
next  station.^*  By  refusal  to  accept  on  other  grounds,  though 
the  goods  were  tendered  at  an  unusual  place,  the  consignee  may 
waive  the  right  of  delivery  at  the  usual  place.^^  It  may  be  a 
conversion  of  the  goods  to  deliver  at  the  wrong  place  and  fail  to 
notify  the  shipper,  as  where  the  directions  were  to  ship  to  Gates 
City,  Va.,  and  the  carrier  without  the  shipper's  knowledge  billed 
the  goods  to  Preston,  Va.,  where  they  lay  and  became  valueless.^® 

§  231.  Delivery  as  warehouseman. — After  the  relation  as 
carrier  has  terminated,  and  the  goods  are  held  as  by  a  warehouse- 
man, then  there  is  no  absolute  duty  to  deliver  rightly,  but  only 
to  use  ordinary  care,  as  an  ordinaiy  bailee.^^  So  where  the  car- 
rier has  tendered  the  goods  as  directed,  and  they  have  been  re- 
fused, the  relation  of  carrier  is  terminated,  and  he  henceforward 
holds  them  as  a  warehouseman,  and  is  not  liable  for  delivery 

""Rowe  V.   Pickford,  8  Taunt.  83;  Ala.  534,  7  So.  654,  42  Am.  &  Eng. 

Dixon  V.  Baldwen.  5  East  175.  R.  Cas.  450. 

"London  &c.  R.  Co.  v.  Bartlett,  7  ^Central    of    Georgia    R.    Co.    v. 

H.  &  N.  400;   Lewis  v.   Western  R.  Montmollen,    145    Ala.    468,    39    So. 

Co.,  11  Mete.   (Mass.)  509;  Sweet  v.  820,   117  Am.  St.  58.     And  the  mere 

Barney,  23  N.  Y.  335 ;  Cleveland,  P.  fact    that    some    of    the    articles    are 

R.  Co.  V.  Sargent,  19  Ohio  St.  438.  missing  does  not  justify  the  consignee 

^^  Black  V.  Ashley,  80  Mich.  90,  44  in    refusing    to    receive    the    others. 

N.  W.   1120;  Arthur  v.  St.   Paul  &c.  ^Cleveland.  C.  C.  &  St.  L.  R.  Co. 

R.  Co..  38  Minn.  95,  35  N.  W.  718.  v.  Potts,  33  Ind.  App.  564,  71  N.  E. 

^Elliott   R.   R.    (2d   ed.),    §    1519;  685. 

Richardson  v.  Canadian  Pac.  R.  Co.,  "Hutchinson     Carriers     (3d     ed). 

19  Ont.  369,  45  Am.  &  Eng.  R.  Cas.  §§    681,   684:    Stephenson   v.    Hart,   4 

413.  Bing.  476;   Duff  v.  Biidd.  3  Brod.  & 

"*  Louisville  &c.  R.  Co.  v.  Gilmer,  89  Bing.  177;  Wilson  v.  Railroad  Co..  94 

Cal.  166,  29  Pac.  861,  17  L.  R.  A.  685. 


250  BAILMENTS. 

■Upon  a  forged  order,  if  he  has  used  ordinary  care.^^  When  the 
delivery  is  impossible  because  the  consignee  refused  the  goods, 
or  could  not  be  found,  or  when  he  delays  for  an  unreasonable 
length  of  time  in  taking  them  away  when  it  is  his  duty  so  to 
do,  the  relation  of  warehouseman  is  created,^"  and  the  carrier 
holding  as  warehouseman  becomes  liable  only  for  misdelivery 
caused  by  negligence  on  his  part/"  So  it  is  of  much  importance 
at  what  time  the  carrier's  liability  as  such  ends,  and  that  of  ware- 
houseman begins.  Generally,  when  he  has  done  all  the  law  re- 
quires'in  trying  to  effect  a  delivery,  but  has  failed,  he  then  holds 
the  goods  as  a  depositary  or  ordinary  bailee.*^  This  is  often 
dependent  upon  the  circumstances. 

§  232.  Delivery  by  water  carriers. — Water  carriers  have 
never  been  required  to  make  delivery  personally.  They  are  held 
to  the  duty  only  to  land  at  a  wharf  or  proper  place,  and  notify  the 
owner.^^  Personal  delivery  would  require  them  to  use  land 
transportation,  and  such  is  not  expected  of  them.  They  must, 
however,  provide  a  suitable  and  safe  place  to  land  the  goods,  and 
may  not  leave  them  unprotected  and  thus  divest  themselves  of  the 
carrier's  responsibility,  so  it  is  the  law  that  if  the  consignee  does 
not  take  the  goods  directly  from  the  carrier,  the  latter  must  keep 

''Stephenson  v.  Hart,  4  Bing.  476;  St.  328;  Fenner  v.  Buffalo  &c.  R.  Co., 

Duff  V.  Budd,  3  Brod.  &  Bing.  177 ;  44  N.  Y.  505,  4  Am.  Rep..  709 ;  Weed 

Heugh  V.  London  &c.  R.  Co.,  L.  R.  5  v.  Barney,  45  N.  Y.  344 ;  Fisk  v.  New- 

Exch.  51;  Bush  v.  St.  Louis  &c.  R.  ton,  1  Denio  (N.  Y.)  45,  43  Am.  Dec. 

Co.,  3  Mo.  App.  62.  649;   Byrne  v.  Fargo,  36  Misc.    (N. 

'Illinois    Cent.    R.    Co.    v.    Carter,  Y.)    543,   1Z   N.   Y.   S.  943;    Neal  v. 

165  111.  570,  46  N.  E.  374,  36  L.  R.  A.  Wilmington   &c.   R.   Co.,  8  Jones   L. 

527;   Manhattan  Rubber  Shoe  Co.  v.  (N.  Car.)    482;  Kremer  v.   Southern 

Chicago,  B.  &  Q.  R.  Co.,  9  App.  Div.  Exp.  Co.,  6  Cold.   (Tenn.)  356. 

(N.   Y.)    172,   75   N.   Y.    St.   544,   41  *^  Hutchinson     Carriers     (3d    ed.), 

N.  Y.  S.  83.    Where  the  carrier  offers  §  686;  Gregg  v.  Illinois  Cent.  R.  Co., 

to  deliver  part  of  the  goods  and  the  147  111.  550,  35  N.  E.  343,  Zl  Am.  St. 

consignee   refuses    to   accept   because  238;  Louisville  &c.  R.  Co.  v.  Gay,  143 

part  is  missing,  the  relation  of  car-  Ky.  56,   135   S.  W.  400,  ZZ  L.  R.  A. 

rier  is  ended  as  to  the  goods  refused.  (N.  S.)  303. 

Louisville  &c.  R.  Co.  v.  Gay,  143  Ky.  ^^'Hyde   v.    Trent    &    Mersey   Nav. 

56,  135  S.  W.  400,  ZZ  L.  R.  A.  (N.  S.)  Co.,  5  T.   R.  389;  Union    Steamboat 

303;  North  Yakima  Brewing  &  Malt-  Co.  v.  Knapp,  1Z  111.  506;  Chickering 

ing  Co.  v.  Northern  Pac.  R.  Co.,  49  v.  Fovirler,  4  Pick.  (Mass.)  371;  Ros- 

Wash.  375,  95  Pac.  486,  16  L.  R.  A.  enstein  v.  Vogemann,  184  N.  Y.  325, 

(N.  S.)   935n.  6  Am.  &  Eng.  Ann.  Cas.  13,  and  see 

*"  Hudson  V.  Baxendale,  2  Hurl.  &  note  for  general  discussion  of  deliv- 

N.  575 ;  Hasse  v.  American  Exp.  Co.,  ery  by  water  carrier ;   Cope  v.   Cor- 

94  Mich.  133,  53  N.  W.  918,  34  Am.  dova,  1  Rawle  (Pa.)  203. 


TERMINATION"    OF    CARRIER    RELATION.  25 1 

them  until  he  has  had  reasonable  time  after  notice  to  come  for 
them.'*^  After  keeping  them  a  reasonable  time  for  removal  after 
notifying  the  consignee,  he  may  store  the  goods,  and  escape  any 
extraordinary  liability.**  If  the  consignee  refuses  the  goods 
the  carrier  must  place  them  in  safe  keeping,  and  then  his  carrier's 
liability  is  terminated.*^  Notice  to  the  consignee  must  be  actual, 
and  not  constructive,**^  but  may  be  made  to  his  agent.*'  If  he  is 
expected  to  remove  the  goods  upon  the  same  day  notice  is  given, 
he  must  have  opportunity  to  remove  them  before  the  expiration  of 
business  hours,  and  if  the  removal  is  not  completed,  he  will  have 
a  reasonable  time  the  next  day  for  the  same,  and  the  carrier  is  in 
the  meantime  liable  for  the  safety  of  such  of  the  goods  as  could 
not  have  been  removed  in  ordinary  diligence.*^  The  water  car- 
rier must  separate  the  consignee's  goods  from  those  of  others,  so 
that  he  may  easily  remove  them,  and  they  are  not  ready  for 
delivery  until  this  is  done.*^  The  consignee  cannot  be  required 
to  remove  the  goods  upon  Sunday  or  a  legal  holiday  when  labor 
is  forbidden.  But  if  the  day  is  a  holiday  or  fast  day,  but  not  one 
on  which  labor  is  forbidden,  such  fact  is  no  excuse  for  faikn-e  to 
remove  the  goods.^°  The  consignee  is  only  entitled  to  remove 
the  goods  to  a  safe  place  at  a  reasonable  distance,  and  he  must 

** Hutchinson     Carriers     (3d     ed.),  Solomon  v.  Philadelphia  &c.   Steam- 

§  688;  note.  97  Am.  St.  99,  and  cases  boat  Co.,  2  Daly  (N.  Y.)   104. 

further  cited ;   The  Captain  John,  33  "  King     v.     New     Brunswick     &c. 

Fed.  927;  The  Titania,  124  Fed.  975;  Steamship  Co.,  36  Misc.  (N.  Y.)  555, 

The  Scandinavia,  49  Fed.  658;  Price  73  N.  Y.  S.  999. 

V.  Powell,  3  X.  Y.  322 ;  Redmond  v.  *^  Segura  v.  Reed,  3  La.  Ann.  695 ; 

Liverpool    Steamboat    Co.,    56    Barb.  Price  v.  Powell,  3  N.  Y.  322. 

(N.  Y.)  320,  46  N.  Y.  578,  5  Am.  Rep.  *»The  Titania,   131  Fed.  229,  65  C. 

390;  Richardson  v.  Goddard.  23  How.  C.   A.  215;    The   Eddy,   5   Wall.    (U. 

(U.  S.)  28,  16  L.  ed.  412;  The  Eddy,  S.)    481,    18    L.    ed.    486;    The    Ben 

5  Wall.  (U.  S.)  481,  18  L.  ed.  486.  Adams,  2  Ben.  (U.  S.)  445;  3  Kent's 

"See  cases   cited   in  note  43;   The  Com.  215. 

Titania.    131   Fed.   229,  65   C.   C.   A.  ^^  Gates  v.  Ryan,  37  Fed.  154;  RicH- 

215;    The    Ravendale,    75    Fed.    408,  ardson  v.  Goddard,  23  How.  (U.  S.) 

410,  413;   The  Richard  Winslow,  67  28,   16  L.  ed.  412.   It  was  held  that 

Fed.   259,   71    Fed.   426,    18  C.   C.   A.  since   the   Fourth    of   July   is    not   a 

344;    Rosenstein    v.    Vogemann,    102  legal  holiday  in  New  York,  there  is 

App.  Div.  (N.  Y.)  39,  92  N.  Y.  S.  86,  no  legal   reason  preventing  the  con- 

affd.   184  N.   Y.   325.   77  N.   E.  625 ;  signee  from  accepting  goods  tendered 

Mc.^ndrew  v.  Whitlock,  52  N.  Y.  40.  on  that  day.  but  that  a  usage  not  to 

11   Am.   Rep.   657;   Tarbell  v.   Royal  receive  goods  on  that  dav  might  be 

Exchange    Shipping    Co.,    110    N.    Y.  .shown.    Russell  Mfg.  Co,  v.  The  New 

170,  17  N.  E.  721.  6  Am.  St.  350.  Haven  Steamboat  Co..  50  N.  Y.  121. 

*^  See  cases  cited  in  note  43.  And  in  Schcn  v,  Benedict.  116  N.  Y. 

^'Kohn  v.  Packard,  3  La.  225;  Mc-  510.  22  N.  E.  1073,  15  .Am.  St.  426n. 

Keon  V.  See,  4  Robt.   (N.  Y.)   449;  it  was  said  that  a  consignee  is  not 


252  BAILMENTS. 

bear  the  risk  of  unreasonable  delay ,^^  as  when  He  takes  time  to 
haul  the  goods  to  an  unusual  distance.  Notice  given  to  the  con- 
signee by  the  water  carrier  is  largely  equivalent  to  delivery  per- 
sonally by  the  land  carrier,  and  he  must  use  reasonable  diligence 
to  give  such  notice,  and  unless  notice  is  given  or  until  there  is  a 
due  effort  to  give  such  notice,  which  has  failed,  he  continues  liable 
as  a  carrier.^^  An  established  course  of  dealing  between  the 
parties  or  the  uniform  usage  of  business,  in  a  particular  trade  in 
the  locality,  such  usage  being  held  to  enter  into  the  contract, ^^ 
may  waive  the  necessity  of  notice,^*  whether  or  not  known  to  the 
shipper.  Likewise  the  necessity  of  notice  may  be  waived  by 
contract.^^  When  a  specified  landing  place  is  mentioned  in  the 
contract,  delivery  must  be  made  there,^^  but  if  the  contract  is 
silent  as  to  place,  the  delivery  must  or  may  be  made  at  the  usual 
place  according  to  the  usage  of  the  port,  or  the  custom  of  busi- 
ness between  the  parties,^^  or,  if  there  is  no  regular  place,  at  the 
place  directed  by  the  consignee.^^  It  may  be  provided  by  con- 
tract that  the  delivery  shall  be  made  at  the  ship's  tackle,^*  or,  by 
usage  of  the  port,  delivery  to  the  custom  house  officers  is  a  good 
delivery,^'*  and  there  may  be  shown  a  carrier's  usage  to  retain  con- 
required  to  unload  a  vessel  on  the  New  Haven  Steamboat  Co.,  6  Abb. 
Fourth  of  July.  Pr.    (N.    S.)    72    (N.    Y.),   53  Barb. 

"Liverpool  &c.    S.    Co.   v.    Suitter,     (N.  Y.)  207. 
17  Fed.  695,  affd.  22  Fed.  560 ;  Hedges        '^'The   Boskenna  Bay,   40  Fed.   91. 
V.   Hudson  River   R.   Co.,  49  N.   Y.    6  L.  R.  A.  172;  Constable  v.  National 
223;     Wynantskill     Knitting    Co.    v.     Steamship   Co.,   154  U.    S.   51,  3S  L. 
Murrav,  90  Hun  (N.  Y.)  554,  36  N.     ed.  903,  14  Sup.  Ct.  1062. 
Y.  S.  26.  ''  Johnston   v.    Davis,  60  Mich.  56, 

"'Union  Steamboat  Co.  v.  Knapp,  26  N.  W.  830;  Strieker  v.  Leathers, 
73  111.  506;  Zinn  v.  N.  J.  Steamboat  68  Miss.  803,  9  So.  821,  13  L.  R.  A. 
Co.,  49  N.  Y.  442,  10  Am.  Rep.  402;    600. 

Sherman  v.  Hudson  River  R.  Co.,  64  "  Hewlett  v.  Burrell,  105  Fed.  80, 
N.  Y.  254.  44  C.  C.  A.  362 ;  Dixon  v.  Dunham,  14 

"  Stone  v.  Rice,  58  Ala.  95 ;  Illinois  111.  324,  Jameson  v.  Sweeney,  32 
Cent.  R.  Co.  v.  Carter,  165  111.  570,  Misc.  (N.  Y.)  645,  66  N.  Y.  S.  494; 
46  N.  E.  374,  36  L.  R.  A.  527;  Love-  Ri  hmond  v.  Union  Steamboat  Co., 
land  v  Burke,  120  Mass.  139,  21  Am.  87  N.  Y.  240;  Salmon  Falls  Mfg.  Co. 
Rep.  507;  Gibson  v.  Culver,  17  Wend.  v.  The  Tangier,  1  Cliff.  (U.  S.)  396, 
(N.  Y.)  305,  31  Am.  Dec.  297;  Penn-  Fed.  Cas.  No.  122:6. 
svlvania  R.  Co.  v.  Naive,  112  Tenn.  ''Smith  v.  Lee,  66  Fed.  344,  13  C. 
239,  79  S.  W.  124,  64  L.  R.  A.  443;  C.  A.  506;  Dixon  v.  Dunham,  14  111. 
Farmers'  &  Merchants'  Bank  v.  324;  Richmond  v.  Union  Steamboat 
Champlain  Transp.  Co..  16  Vt.  52.  42  Co.,  87  N.  Y.  240. 
Am.  Dec.  491.  18  Vt.  131,  23  Vt.  186,  '^'' Smith  v.  Britain  S.  Co.,  123  Fed. 
56  Am   Dpc.  68  176;   Ames   Mercantile   Co.   v.   Kim- 

"  Russell  Mfg.  Co.  v.  New  Haven    ball  Steamship  Co..  125  Fed.  332 

Steamboat  Co.,  50  N.  Y.  121;  Ely  v.    "The  Asiatic  Prince,  108  Fed.  287, 


TERMINATION  OF  CARRIER  RELATION.  253 

trol  of  fruit  until  after  sorted  and  sold  at  auction."^     The  terms 
of  a  bill  of  lading  will  govern  over  the  custom  of  a  port."' 

§  233.  Delivery  by  railroads. — Since  a  railroad's  cars 
move  upon  fixed  lines,  and  they,  like  water  carriers,  cannot 
deliver  personally  unless  they  use  outside  methods  of  transporta- 
tion, they  are  not  held  to  deliver  in  person,  and  are  allowed  to 
make  delivery  at  fixed  places  along  their  routes.  Three  rules  are 
followed  by  our  courts  as  to  when  the  common  carrier's  liability 
ends,  or  as  to  whether  notice  is  necessary. 

§  234.  Massachusetts  rule. — The  courts  of  Massachusetts 
hold  that  all  that  is  necessary  for  a  railroad  to  do  is  to  deposit  the 
goods  safely  upon  the  platform  or  in  the  warehouse  of  the  road  at 
the  station  of  their  destination,  and  that  no  notice  to  the  con- 
signee of  their  arrival  is  necessary,  but  that  when  the  goods  are 
so  safely  deposited,  the  liability  of  the  carrier  as  such  is  ended. 
The  theory  of  the  rule  is  that  the  consignee  is  always  advised  of 
the  beginning  of  the  transportation  of  the  goods,  that  he  knows 
with  reasonable  certainty  when  they  will  arrive  since  railroad 
transportation  is  very  regular,  that  it  would  be  almost  impossible 
for  the  railroad  to  send  out  so  many  notices,  and  that  it  is  better 
to  put  upon  the  consignee  the  duty  of  inquiring  about  the  time  of 
arrival  of  the  goods  than  to  impose  upon  the  carrier  the  duty 
to  notify.®*  This  rule  has  been  followed  by  the  courts  in 
Georgia,  Illinois,  Indiana,  Iowa,  Missouri,  North  Carolina,  South 
Carolina  and  Pennsylvania.®* 

47  C.  C.  A.  325;  The  Segurawca,  68  unloaded,  for  a  carrier  is  required  to 

Fed.  1014.  provide  a  safe,  proper  place  for  de- 

"Hart   V.    Pearson,    12    Rap.   Jud  livery.     Bachant  v.  Boston  &  M.  R. 

Que.  (C.  S.)  540.  Co.,  187  Mass.  392,  7:^  N.  E.  642,  105 

°'  Parsons  v.  Hart,  30  Can.  Sup.  Ct.  Am.  St.  408. 
473.  '* Georgia  &c,  R.  Co.  v.  Pound.  Ill 

"Norviray  Plains  Co.  v.  Boston  &  Ga.  6,  36  S.  E.  312;  Illinois  Cent.  R. 
M.  R.  Co.,  1  Gray  (Mass.)  263,  61  Co.  v.  Carter,  165  111.  570,  46  N.  E. 
Am.  Dec.  423;  Thomas  v.  Boston  &  374,  36  L.  R.  A.  527;  Schumacher  v. 
P.  R.  Co.,  10  Mete.  (Mass.)  472,  43  Chicago  &c.  R.  Co.,  207  111.  199,  69 
Am.  Dec.  444;  Rice  v.  Hart,  118  Mass.  N.  E.  825;  Pittsburg,  C.  C.  &  St.  L. 
201,  19  Am.  Rep.  433.  But  if  the  R.  Co.  v.  Nash,  43  Ind.  423;  Mohr  v. 
carrier  has  no  freight  house  and  the  Chicago  &  N.  W.  R.  Co.,  40  Iowa 
consignees  unload  from  the  cars,  the  579;  Herf  &c.  Chemical  Co.  v.  Lack- 
transportation  is  not  ended  until  the  awanna  Line,  100  Mo.  App.  164,  72) 
consignee  is  notified  and  the  car  S.  W.  346;  Chalk  v.  Charlotte  &c. 
placed  where  it  can  be  conveniently  R.    Co.,  85   N.   Car.   423;    Shenk   v. 


254  BAILMENTS. 

§  235.  New  Hampshire  rule. — But  the  courts  of  New- 
Hampshire  hold  that  as  trains  are  more  or  less  irregular  in  their 
hours  of  arrival  at  stations,  and  as  goods  often  arrive  after  busi- 
ness hours,  when  it  is  impossible  for  the  consignee  to  take  them 
away,  the  carrier  is  liable  as  an  insurer  until  the  consignee  has  a 
reasonable  time  in  which  to  take  the  goods  away.^^  This  rule  has 
been  followed  in  Alabama,  Arkansas,  Kansas,  Kentucky,  Louisi- 
ana, Vermont,  West  Virginia  and  Wisconsin.^®  Under  both  these 
rules  the  carrier  must  deposit  the  goods  safely  in  a  suitable  place, 
before  termination  of  the  carrier's  liability,''^  and  the  rules  apply 
only  to  delivery  at  destination,  and  not  to  delivery  to  a  succeeding 
carrier.''^  Both  are  a  great  departure  from  the  general  law  of  car- 
riers and  their  reasoning  is  often  disapproved.  Hutchinson,  dis- 
approving both  rules,  says  that  "it  may  not  be  always  true  that  the 
person  to  whom  the  goods  are  sent  is  advised  of  the  fact;  and 
common  experience  teaches  that,  *  *  '^  the  frequent  delays 
occasioned  by  excess  of  freight  and  various  other  circumstances 
make  the  time  of  arrival  of  goods  consigned  by  railways  often- 
times as  uncertain  perhaps  as  it  would  be  by  any  other  mode  of 
transportation,"  and  though  railway  carriers  usually  have  secure 
warehouses,  yet  the  goods  are  in  the  carrier's  custody,  and  may  be 
embezzled  by  its  servants,  and  the  owner  may  not  know  of  their 
arrival.®^ 

Philadelphia  Steam  Propeller  Co.,  60  St.  208;  Missouri  Pac.  R.  Co.  v.  New- 
Pa.  St.  109,  100  Am.  Dec.  541 ;  Spears  berger,  67  Kans.  846.  73  Pac.  57; 
V.  Spartanburg  &c.  R.  Co.,  US.  Car.  Lewis  v.  Louisville  &c.  R.  Co.,  135 
158.  Ky.  361,  122  S.  W.  184.  25  L.  R.  A. 

''Maignan  v.  New  Orleans  &c.  Co.,  (N.  S.)  938  and  note,  21  Am.  &  Eng. 
24  La.  Ann.  333;  Moses  v.  Boston  Ann.  Cas.  527  and  note. 
&  M.  R.  Co.,  32  N.  H.  523,  64  Am.  ''Alabama  &c.  R.  Co.  v.  Kidd,  35 
Dec.  381;  Ouimit  v.  Henshaw,  35  Vt.  Ala.  209;  Chicago  &  N.  W.  R.  Co.  v. 
605,  84  Am.  Dec.  646;  Berry  v.  West  Benslev,  69  111.  630;  Bachant  v.  Bos- 
Virginia  &c.  R.  Co.,  44  W.  Va.  538,  ton  &  M.  R.  R.  Co.,  187  Mass.  392, 
30  S.  E.  143,  67  Am  St.  781;  Back-  73  N.  E.  642,  105  Am.  St.  408;  Klass 
haus  V.  Chicago  &  N.  W.  R.  Co.,  92  Commission  Co.  v.  Wabash  R.  Co., 
Wis.  393,  66  N.  W.  400.  80  ]\Io.  App.   164.                                   , 

^Tallahassee    Falls    Mfg.    Co.    v.  *^  Hptchinson     Carriers     (3d     ed.), 

Western  R.  Co.,  128  Ala.  167,  29  So.  §§    131,    706;    Texas    &c.    R.    Co.    v. 

203;    Arkansas    Southern    R.    Co.    v.  Reiss,  183  U.  S.  621,  46  L.  ed.  358,  22 

German   Nat.   Bank,   77  Ark.   482,  92  Sup.  Ct.  253. 

S.  W.  522,  113  Am.  St.  160;  Missouri  '"Hutchinson     Carriers     (3d     ed.). 

Pac.   R.   Co.  V.   Nevill,  60   Ark.   375,  §  707.    But  compare  Elliott  R.  R.  (2d 

30  S.  W.  425,  28  L.  R.  A.  80,  46  Am.  ed.),  §  1527a. 


TERMINATION    OF    CARRIER    RELATION.  255 

§  236.  New  York  rule. — The  New  York  rule  is  that  if  the 
consignee  is  present  when  the  goods  arrive,  he  must  remove  them 
without  unreasonable  delay;  if  he  is  not  present,  but  lives  near 
the  place  of  delivery,  the  carrier  must  notify  him  of  the  arrival, 
and  he  then  must  have  a  reasonable  time  to  take  them  away;  if 
he  is  absent,  unknown,  or  not  to  be  found,  the  carrier  may  store 
them;  and  if  he  has  had  a  reasonable  time  after  notice,  and  has 
failed  to  remove  them,  the  carrier  is  no  longer  an  insurer."" 
This  rule  is  followed  in  Michigan,  Minnesota,  Mississippi,  North 
Carolina  and  Ohio,^^  while  statutes  in  Alabama,  California,  Ten- 
nessee and  Texas^^  have  brought  about  a  similar  effect,  and  the 
English  rule  is  the  same/^  The  Delaware,  Aiaryland,  Nebraska, 
Oregon  and  Washington  courts^*  lean  toward  the  New  York  rule, 
and  in  New  Jersey  the  rule  is  a  combination  of  the  New  Hamp- 
shire and  New  York  rules,'^^  being  apparently  the  same  for  rail- 
roads and  express  companies. 

§  237.     When  notice  is  unnecessary  or  immaterial. — If  the 

consignee  demands  the  goods,  which  have  already  arrived,  and  is 
informed  that  they  have  not  yet  come,  the  railroad  company 
continues  liable  as  an  insurer.^^     If  the  consignee  actually  knows 

'"Fenner  v.  Buffalo  R.  Co.,  44  N.  souri  Pac.  R.  Co.  v.  Haynes,  12  Tex. 

Y.  505,  4  Am.   Rep.  709 ;   Hedges  v.  175,  10  S.  W.  398. 

Hudson  Riv.  R.   Co..  49  N.   Y.  223;  "Mitchell  v.  Lancashire  &c.  R.  Co., 

McDonald  v.  The  Western  R.  Corp.,  L.  R.  10  Q.  B.  256 ;  Chapman  v.  Great 

34  N.  Y.  497 ;  Sprague  v.  New  York  Western  R.  Co.,  5  Q.  B.  Div.  278. 

Cent.   R.   Co.,   52  N.   Y.  637;    Pelton  "  McHenry  v.    Philadelphia  &c.   R. 

V.  The  Rensselaer  &c.  R.  Co.,  54  N.  Co.,  4  Har.  (Del.)  448;  United  Fruit 

Y.  214,  13  Am.  Rep.  568.  Co.   v.    New    York  &c.    Transp.    Co., 

'^  Buckley  v.  Great  Western  R.  Co.,  104  Md.  567,  65  Atl.  415,  8  L.  R.  A. 

18    Mich.    121;    Walters    v.    Detroit  (N.   S.)   240n,  10  Am.  &  Eng.  Ann. 

United  R.  Co.,  139  Mich.  303,  102  N.  Cas.   437;   Burlington  &c.   R.   Co.   v. 

W.  745;  Pinney  v.  First  Division  of  Arms,    15   Nebr.  69,    17  N.    W.   351; 

St.    P.   &c.   R.   Co.,   19  Gil.    (Minn.)  Normile  v.  Oregon  Nav.  Co.,  41  Ore. 

211;   Gulf   &c.   R.   Co.   v.   Fuqua,   84  177,  69  Pac.  928 ;  McGregor  v.  Oregon 

Miss.  490,  Zd  So.  449;   Poythress  v.  &c.  R.  Co.,  50  Ore.  527.  93  Pac.  465, 

Durham  &c.  R.  Co.,  148  N.  Car.  391,  14  L.  R.  A.  (N.  S.)  668;  Normile  v. 

62  S.  E.  515,  18  L.  R.  A.  (N.  S.)  427;  Northern  Pac.  R.  Co.,  36  Wash.  21, 

Lake  Erie  &c.   R.   Co.   v.   Hatch,  52  11  Pac.  1087,  67  L.  R.  A.  271. 

Ohio  St.  408.  39  N.  E.  1042,  11  Am.  "Burr  v.  Adams  Exp.   Co.,  71   N. 

R.  &  Corp   611.  J.  L.  263,  58  Atl.  609;  Morris  &c.  R. 

"  Collins  V.  Alabama  G.  S.  R.  Co.,  Co.  v.  Ayres,  29  N.  J.  L.  393,  80  Am. 

104  Ala.  390,  16  So.   140 :  Wilson  v.  Dec.  215. 

California  Cent.  R.  Co.,  94  Cal.  166,  "East    Tennessee    &c.    R.    Co.    v. 

29  Pac.  861,  17  L.  R.  A.  685;  Pennsvl-  Kelly,  91   Tenn.   699,   20  S.    W.   312, 

vania  R.  Co.  v.  Naive,  112  Tenn.  239,  17    L.    R.    A.    691,    30    Am.    St.    902; 

79  S.  W.  124,  64  L.  R.  A.  443;  Mis-  Berry  v.   West  Virginia   R.    Co.,  44 


256 


BAILMENTS. 


of  the  arrival,  notice  is  unnecessary/'^  Usage  may  control  as 
to  the  place  of  delivery,  and  may  excuse  the  giving  of  notice, 
or  may  make  the  giving  of  notice  necessary."  Though  notice 
may  be  given  to  consignee's  agent,  notice  to  a  transfer  company 
or  drayman  in  the  habit  of  hauling  goods  is  not  notice  to  the 
consignee/® 

§  238.  When  liability  as  warehouseman  begins. — In  this 
country,  bulky  freight  is  unloaded  by  the  consignee,  and  it  is  only 
required  that  the  company  shall  place  the  cars  where  they  may  be 
safely  and  conveniently  unloaded,  or  carry  them  to  a  place  named 
in  the  contract,  and,  if  by  law,  usage,  or  contract  notice  is  re- 
cjuired,  notify  the  proper  party.  The  carrier  is  then  liable  only 
as  a  warehouseman  in  states  where  the  Massachusetts  rule  pre- 
vails, and  after  a  reasonable  time  assumes  such  liability  in  other 
states.®**  The  same  applies  to  small  package  freight  except  that 
the  consignee  is  under  no  obligation  to  unload.  What  is  a  rea- 
sonable time  depends  upon  the  circumstances  of  the  case,  and  is 


W.  Va.  538,  30  S.  E.  143,  67  Am.  St. 
781.  If  goods  shipped  over  the  rail- 
road reach  the  destination  and  when 
consignee  applies  for  them  he  is 
told  that  the  waybill  is  not  yet  made 
out  and  will  not  be  that  day,  this  is 
equivalent  to  telling  him  that  they 
cannot  then  be  delivered,  and  the  rail- 
road company  remains  liable  as  a  car- 
rier for  subsequent  loss  by  fire  with- 
out negligence.  Fisher  v.  Northern 
Pac.  R.  Co.,  49  Wash.  258,  94  Pac. 
1073,  126  Am.  St.  867.  The  converse 
was  held  true  where  the  consignee 
was  told  that  the  bills  would  be  ready 
and  the  goods  ready  to  deliver  in  the 
afternoon,  and  the  consignee  did  not 
call  for  them  and  they  were  de- 
stroi'ed  by  fire  that  night.  It  was  held 
that  a  reasonable  time  was  given. 
North  Yakima  &c.  R.  Co.  v.  North- 
ern Pac.  R.  Co.,  49  Wash.  375,  95 
Pac.  486,  16  L.  R.  A.  (N.  S.)  935n. 

"  Rinney  v.  St.  Paul  &c.  R.  Co.,  19 
I\Iinn.  251;  Feimer  v.  Buffalo  &c.  R. 
Co.,  44  N.  Y.  505,  4  Am.  Rep.  709. 
Normile  v.  Northern  Pac.  R.  Co.,  36 
Wash.  21,  n  Pac.  1087,  67  L.  R.  A. 
271.  One  who  consigns  goods  to 
himself  at  a  place  where  he  does  not 
reside  and  has  no  agent  is  not  en- 


titled to  notice.  Denver  &c.  R.  Co.  v. 
Peterson,  30  Colo.  11,  69  Pac.  578, 
97  Am.  St.  !(>.  Under  similar  circum- 
stances, if  the  bill  of  lading  requires 
notice  to  be  given  to  the  consignee, 
he  must  put  himself  in  a  position  to 
receive  notice.  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  Townes,  93  Ark.  430,  124 
S.  W.  1036,  26  L.  R.  A.  (N.  S.) 
572n. 

''  Bachant  v.  Boston  &c.  R.  Co.,  187 
Mass.  392,  12,  N.  E.  642,  105  Am.  St. 
408;  Herf  &  Trerichs  Chem.  Co.  v. 
Lackawanna  Line,  100  Mo.  App.  164, 
1Z  S.  W.  346;  McMasters  v.  Pennsyl- 
vania R.  Co.,  69  Pa.  St.  374,  8  Am. 
Rep.  264. 

"  Hockfield  v.  Southern  R.  Co.,  150 
N.  Car.  419,  64  S.  E.  181,  134  Am.  St. 
945;  Berry  v.  West  Va.  &c.  R.  Co., 
44  W.  Va.  538,  30  S.  E.  143,  67  Am. 
St.  781. 

^  Kenny  v.  Atlantic  &c.  R.  Co.,  122 
Ga.  365,  50  S.  E.  132;  Gregg  v.  Illi- 
nois Cent.  R.  Co.,  147  111.  550,  35 
N.  E.  343,  Z1  Am.  St.  238;  Kirk  v. 
Chicago  &c.  R.  Co.,  59  Minn.  161,  60 
N.  W.  1084,  50  Am.  St.  397;  Whit- 
ney Mfg.  Co.  V.  Richmond  &c.  R.  Co., 
38  S.  Car.  365.  17  S.  E.  147,  Zl  Am. 
St.   767.   Delivery  is   complete   when 


TERMINATION    OF    CARRIER    RELATION. 


257 


a  question  of  law  if  facts  are  undisputed. "^^  Perhaps  the  best 
definition  of  a  reasonable  time  is  that  of  Mr.  Wood  quoted  in 
Elliott  on  Railroads.^-  "What  is  meant  by  a  reasonable  time 
is  such  as  would  give  a  person  residing  at  the  place  to  which 
the  goods  are  consigned,  and  informed  of  the  usual  course  of 
business  on  the  part  of  the  company,  a  suitable  opportunity 
within  business  hours  after  the  goods  are  ready  for  delivery, 
to  come  to  the  place  of  delivery,  inspect  the  goods  and  take 
them  away."  Goods  held  at  the  request  of  the  consignee  for 
his  convenience  are  held  as  a  warehouseman.^^ 

§  239.  Liability  as  warehouseman. — AVhen  the  carrier  be- 
comes a  warehouseman  he  becomes  an  ordinary  bailee  for 
hire,  and  may  charge  for  the  storage,  custody  and  protection 
of  the  goods,  which  is  a  service  distinct  from  transportation, 
for  whatever  time  they  remain  in  his  care  after  a  reasonable 
time  has  elapsed  for  their  removal.^"*  As  a  bailee,  he  must  use 
ordinary  care  to  keep  the  goods  safely  for  the  owner,  and  for 
negligence  in  this  respect  is  liable. ^^  If  the  consignee  has  re- 
fused to  accept  the  goods,  he  remains  bailee  for  the  owner, 
whoever  he  may  be.^^  When  once  the  liability  as  a  ware- 
houseman has  attached,  it  continues  as  long  as  the  goods  are 
in  the  custody  of  the  carrier.^''^  The  warehouseman,  like  the 
water  carrier,  must  give  the  consignee  reasonable  opportuni- 
ties to  get  the  goods  from  the  place  of  deposit. ^^ 


consignee's  agent  has  entered  car 
and  broken  seal.  Rothschild  v. 
Northern  Pac.  R.  Co.,  68  Wash. 
527,  123  Pac.  1011,  40  L.  R.  A.  (N. 
S.)  nZ,  and  note. 

*^  Hutchinson  Carriers  (3d  ed.), 
§712;  Elliott  R.  R.  (2d  ed.),  §  1528; 
Roth  V.  Buffalo  &c.  R.  Co.,  34  N.  Y. 
548,  90  Am.  Dec.  736;  Normile  v. 
Northern  Pac.  R.  Co.,  36  Wash.  21, 
n  Pac.  1087.  67  L.  R.  A.  271. 

'==  Elliott  R.  R.  (2d  ed.),  §1528. 

*"  United  Fruit  Co.  v.  New  York 
&c.  Transp.  Co.,  104  Md.  567,  65  Atl. 
415,  8  L.  R.  A.  (N.  S.)  240n.  10  Am. 
&  Eng.  Ann.  Cas.  437  and  cases 
cited    in    note. 

"*  Cairns  v.  Robins,  8  M.  &  W. 
258;  White  v.  Humphrey,  11  Q.  B. 
43;  Hardman  v.  Montana  Union  R. 


Co.,  83  Fed.  88,  27  C.  C.  A.  407,  39 
L.  R.  A.  300;  Schumacher  v.  Chi- 
cago &  N.  W.  R.  Co.,  207  111.  199, 
69  N.    E.  825. 

^  Cases  cited  in  note  84  just  pre- 
ceding; Tarbell  v.  Royal  Exchange 
Shipping  Co.,  110  N.  Y.  110,  17  N.  E. 
721,  6  Am.  St.  550;  Walker  v.  Eikle- 
berry,  7  Okla.  599,  54  Pac.  553. 

*°  Weed  V.  Barney,  45  N.  Y.  344,  6 
Am.  Rep.  96. 

*'  Cairns  v.  Robins,  8  M.  &  W.  258 ; 
Mitchell  V.  Lancashire  &  Yorkshire 
R.  Co.,  L.  R.  10  Q.  B.  256;  Brown  v. 
Grand  Trunk  R.  Co.,  54  N.  H.  535. 

°*  Independence  Mills  Co.  v.  Bur- 
lington &c.  R.  Co.,  72  Iowa  535.  34 
N.  W.  320,2Am.  St.  258;  Bachant  v. 
Boston  &c.  R.  Co.,  187  Mass.  392. 11 
N.  E.  642,  105  Am.  St.  408 ;  East  Ten- 


258 


BAILMENTS. 


§  240.  Delivery  by  express  companies. — Ex-press  com- 
panies are  required  to  make  personal  delivery,  to  which  they  are 
held  closely,  since  their  undertaking  is  to  cany  small  packages 
and  deliver  personally,®*  but  they  may  dispense  with  this  liability 
at  small  way  stations  of  a  railroad,  upon  giving  prompt  notice,  it 
being  supposed  that  the  parties  contracted  with  reference  to  such 
a  usage,*"  and  an  express  company  in  a  city  may  establish  limits 
beyond  which  its  agents  need  not  go  to  make  a  delivery.*^  To  a 
certain  degree,  the  courts  have  held  that  an  express  company  is 
excusable  by  usage  for  failure  to  deliver  personally,  so  that  it 
has  been  held  that  delivery  to  the  clerk  of  a  government  bakery 
of  a  package  for  one  of  its  employes  was  justified  by  custom,"^ 
or  delivery  of  packages  for  students  to  the  president  of  a  col- 
lege,*^ delivery  to  a  bank  after  banking  hours,**  or  the  delivery 
to  a  department  employe  of  a  letter  enclosing  a  bid  and  samples 
of  car  seals  for  the  United  States  addressed  to  the  Secretaiy  of 
the  Treasury  personally,*^  but  in  general  these  companies  are  not 
allowed  to  restrict  their  liability  for  personal  delivery  by  proof  of 
usage,  since  such  service  is  a  very  element  of  their  holding  out  as 
carriers.*® 

§  241.     Further    of    delivery — Notice    to    consignor. — It 

seems  that  if  the  consignee  refuses  to  accept  the  goods,  the  carrier 
should  be  held  under  the  duty  to  notify  the  consignor  since  he 

nessee  &c.  R.  Co.  v.  Hunt,  15  Lea 
(Tenn.)   261. 

*"  Hutchinson  Carriers  (3d  ed.) 
§716;  Baldwin  v.  Arnerican  Exp 
Co.,  23  111.  197,  74  Am.  Dec.  190 
Witbeck  v.  Holland.  55  Barb.  (N 
Y.)  443,  45  N.  Y.  13,  6  Am.  Rep.  23 
Marshall  v.  American  Exp.  Co.,  7 
Wis.  1,  n  Am.  Dec.  381. 

^  Southern  Exp.  Co.  v.  Holland, 
109  Ala.  362,  19  So.  66;  Baldwin  v. 
American  Exp.  Co.,  23  111.  197,  74 
Am.  Dec.  190;  Gulliver  v.  Adams 
Exp.  Co.,  38  III.  503;  Laporte  v. 
Wells  Fargo  Exp.  Co.,  23  App.  Div. 
(N.  Y.)  267,  48  N.  Y.  S.  292.  For  a 
case  in  which  an  express  company 
though  it  failed  to  send  notice  where 
delivery  was  made  only  at  its  office, 
was  yet  held  liable  only  as  a  v/are- 
houseman  for  the  loss  of  a  package 


bj"-  theft,  when,  if  notice  had  been 
sent,  the  owner  could  not  have  re- 
moved the  package  in  time  to  avoid 
loss,  see  Hutchinson  v.  United 
States  Exp.  Co.,  63  W.  Va.  128,  59 
S.   E.  949,  14  L.  R.  A.  (N.  S.)  393. 

"  State  V.  Adams  Exp.  Co..  171  Ind. 
138,  85  N.  E.  Z2>1,  966,  19  L.  R.  A. 
(N.  S.)  93n;  Ballard  v.  American 
Exp.  Co.,  107  Mich.  695,  65  N.  W. 
551,  12>  L.  R.  A.  66,  61  Am.  St.  358. 

''"Sullivan  v.  Thompson,  99  Mass. 
259. 

^  Southern  Exp.  Co.  v.  Everett, 
Z1  Ga.  688. 

^  Marshall  v.  American  Exp.  Co., 
7  Wis.  1,  n  Am.  Dec.  381. 

==Aldrich  Car-Seal  Mfg.  Co.  v. 
American  Exp.  Co.,  117  Mich.  Z2, 
65  N.  W.  94. 

"^  Haslam  v.  Adams  Exp.  Co.,  6 
Bosw.  (N.  Y.)  235. 


TERMINATION    OF    CARRIER    RELATION.  259 

must  presume  that  the  latter  is  yet  the  owner  of  the  goods,'*^ 
although  the  opposite  is  held  in  some  cases."®  There  is  no  duty 
to  give  notice  in  any  case  to  the  consignor  except  when  there  is 
a  duty  to  make  a  personal  delivery,  or  to  give  notice  to  the  con- 
signee.^* 

§  242.  Carrying  goods  C.  O.  D. — Very  often  goods  are 
carried,  usually  by  express,  to  be  delivered  only  in  case  they  are 
paid  for.  Thus  the  carrier  becomes  the  agent  of  the  consignor 
to  collect  the  payment  and  if  he  delivers  the  goods  without  collec- 
tion of  the  amount  instructed,  he  is  liable  to  the  consignor.^  It 
is  not  a  part  of  the  implied  duty  of  a  carrier  to  collect  money  for 
goods,  but  such  duty  must  arise  from  contract  and  may  be  created 
by  the  carrier's  accepting  goods  marked  C.  O.  D."  If  the  car- 
rier professes  to  carry  goods  C.  O.  D.  he  will  be  held  to  carry  for 
the  public  on  these  terms,  and,  in  such  case,  a  contract  may  be  im- 
plied if  he  accepts  goods  clearly  marked  with  the  price  and  the 
letters  C.  O.  D.^  The  contract  to  collect  being  apart  from  the 
carrier's  undertaking  as  a  carrier,  it  may  be  oral,  while  the  con- 
tract of  carriage  of  the  goods  is  contained  in  the  carrier's  receipt.* 
A  carrier  who  has  not  been  in  the  custom  of  carrying  goods 
C.  O.  D.  cannot  be  made  liable  for  collection  merely  by  accept- 
ing a  package  so  marked.^  The  carrier  must  allow  the  consignee 
a,  reasonable  time  in  which  to  pay  for  the  goods,^  but  if  they  are 
once  tendered  to  him  and  he  refuses,  even  though  he  only  wants 
a  reasonable  time  in  which  to  pay  for  them,  the  carrier  holds  as 
warehouseman.'^    If  goods  sent  to  be  paid  for  upon  delivery  have 

"'Green  &  Barren  River  Nav.  Co.  v.  St.  Paul  &c.  R.  Co.,  30  Minn.  265, 

V.  Marshall,  48  Ind.  596 ;  The  Eddy,  15  N.  W.  237,  16  Am.  &  Eng.  R.  Cas. 

5  Wall.   (U.  S.)  481,  18  L.  ed.  486;  246. 

Beedy  v.  Pacey,  22  Wash.  94,  60  Pac.  =  Fowler  v.  Chicago,  R.  I.  &  P.  R. 

56.  Co.,  98  Mo.  App.  210,  71  S.  W.  1077. 

*^Mayell  v.   Potter,  2  Johns.   Cas.  *  American   Exp.  Co.  v.  Lesem,  39 

(N.  Y.)   371;   Fenner  v.   Buffalo   R.  111.  312;   United   States   Exp.   Co.   v. 

Co.,  44  N.  Y.  505,  4  Am.  Rep.  709;  Keefer,  59  Ind.  263. 

Bremer  v.  Southern  Exp.  Co.,  6  Cold.  *  Union  Railroad  &  Transp.  Co.  v. 

(Tenn.)  356.  Riegel.  7Z  Pa.  St.  72. 

**  Hutchinson     Carriers     (3d    ed.),  "Chicago  &  N.  W.  R.  Co.  v.  Mer- 

§  724.  rill.  48  111.  425. 

^  Cox  V.   Columbus  &c.   R.   Co..  91  *  Great  Western  R.  Co.  v.  Crouch, 

Ala.  392,  8  So.  824,  49  Am.  &  Eng.  3  H.  &  N.  183. 

R.    Cas.    Ill    and    note;    Meyer    v.  '^Hasse  v.   American    Elxp.    Co.,  94 

Lemcke,  31  Ind.  208;  Old  Colony  R.  Mich.  133,  53  N.  W.  918,  34  Am.  St. 

Co.  V.  Wilder,  137  Mass.  536;  Jelletts  328. 


26o  BAILMENTS. 

been  obtained  by  the  consignee  without  payment,  through  the 
neghgence  of  the  carrier,  or  through  imposition,  either  the  car- 
rier or  the  consignor  may  recover  them,  except  against  a  bona  fide 
purchaser  from  the  consignee.^  It  seems  that  the  habihty  for 
the  safe  return  of  the  money  after  collection  is  that  of  an  insurer, 
even  though  there  is  no  direct  compensation.^  The  agent  of  a 
railroad  company  has  no  authority  to  guarantee  the  payment  of 
the  price  of  the  goods  shipped.^" 

§  243.     Consignee's  rights  as  to  C.  O.  D.  shipments. — The 

carrier  is  bound  to  give  the  consignee  a  right  to  inspect  the  goods, 
even  if  he  has  instructions  not  to  deliver  them  until  paid  for/^ 
So  if  the  carrier  has  allowed  the  consignee  to  deposit  the  money 
and  take  away  the  goods  for  inspection,  he  may  return  to  him  his 
money  if  they  are  unsatisfactory,^^  or  if  the  consignor  has  at- 
tempted to  defraud  the  consignee,  as  w^here  goods  represented  as 
valuable  w^ere  sent  for  a  certain  amount  of  money  to  be  collected, 
and  when  they  were  opened  were  found  to  be  waste  paper, 
the  carrier  could  return  the  money  to  the  consignee. ^^  As  the 
consignee  is  presumptively  the  owner,^*  a  delivery  in  compliance 
with  his  directions  will  discharge  the  carrier,  although  the  con- 
signor has  directed  delivery  in  a  different  manner.  If  the  carrier 
knows  that  the  goods  do  not  belong  to  the  consignee,  but  that  the 
consignee  is  merely  the  agent  of  the  owner,  he  is  not  allowed  to 
vary  the  consignor's  directions  as  to  delivery.^^  No  change  in 
destination  can  be  made  after  the  goods  have  reached  the  original 
destination." 

"Norfolk     Southern     R.     Co.     v.  "Herrick   v.    Gallagher,   60    Barb. 

Barnes,  104  N.  Car.  25,  10  S.  E.  83,  (N.  Y.)  566. 

5  L  R.  A.  611.  "Hutchinson    Carriers     (3d    ed.), 

•Hutchinson     Carriers     (3d.    ed.),  §  735;  London  &c.  R.  Co.  v.  Bartlett, 

§  731:  Kemp  v.  Coughtfy,  11  Johns.  7  H.  &  N.   400;    Pratt  v.   Northern 

(NY)  107.  Pac.  Exp.  Co.,  13  Idaho  Zn,  90  Pac. 

^"Weikle  V.  Minneapolis  &c.  R.  Co.,  341,  10  L.  R.  A.  (N.  S.)  499,  121  Am. 

64  Minn.  296,  66  N.  W.  963.  St.  268. 

"Brand  v.  Weir,  27  Misc.  (N.  Y.)  *' Thompson  v.  Fargo,  49  N.  Y.  188, 

212,  57  N.  Y.  S.  731 ;  Sloan  v.  Car-  10  Am.  Rep.  342 ;  Southern  Exp.  Co. 

olina  Cent.  R.  Co.,  126  N.  Car.  487,  v.  Dickson,  94  U.  S.  549,  24  L.  ed.  285. 

36  S    E   21  ^*  Melbourne   v.    Louisville   &c.    R. 

^  Lyons  v.  Hill,  46  N.  H.  49,  88  Co.,  88  Ala.  443,  6  So.  762. 
Am.  Dec.  189. 


TERMINATION    OF    CARRIER    RFXATION.  26 1 

§  244.  Excuses  for  nondelivery — Seizure  under  legal 
process. — The  legally  excepted  perils  previously  discussed, 
which  excuse  a  carrier  for  loss,  thus  excuse  him  from  delivery. 
A  carrier  is  also  excused  when  the  goods  have  been  taken  from 
him  by  valid  process  of  law."  In  Massachusetts,  it  is  held  that 
to  excuse  the  carrier,  this  process  must  have  been  against  the 
actual  owner  of  the  goods.^®  It  seems  that  the  requirement  of 
validity  means  no  more  than  that  the  process  must  be  issued  by  a 
court  having  jurisdiction  of  the  subject,  and  be  fair  on  its  face, 
"for  if  it  would  justify  the  officer  in  serving  it,  it  ought  to  justify 
the  carrier  in  yielding  to  it."^^  The  carrier  must  give  notice  to 
the  owner  of  the  seizure  of  the  goods,-"  and  it  is  held  under  the 
maritime  law  that  the  carrier  by  water  must  defend  the  suit  until 
the  owner  is  notified  and  has  reasonable  opportunity  tO'  take  up 
the  litigation.-^  To  excuse  him,  the  carrier  must  have  been 
guilty  of  no  laches  or  collusion  connected  with  the  seizure  of  the 
goods.^-  He  must  promptly  give  notice  to  the  owner.-^  It 
seems  that  goods  in  the  hands  of  the  carrier  in  transitu  cannot  be 
made  subject  to  garnishment  or  trustee  process,-*  but  if  they  are 

"Hutchinson  Carriers  (3d  ed.),  v.  Hope,  2  Sweene}^  (N.  Y.)  561; 
§  738;  Verrall  v.  Robinson,  Tyrwhitts'  Baltimore  &c.  R.  Co.  v.  O'Donnell,  49 
Exch.  1069,  4  Bowling  242 ;  Indiana  Ohio  St.  489,  32  N.  E.  476,  21  L.  R. 
&c.  R.  Co.  V.  Doremeyer,  20  Ind.  App.  A  117,  34  Am.  St.  579. 
605,  50  N.  E.  497,  67  Am.  St.  264;  ''The  M.  M.  Chase,  37  Fed.  708; 
Pingree  v.  Detroit  &c.  R.  Co.,  66  Lemon  v.  Walker,  9  Mass.  404;  Han- 
Mich.  143,  33  N.  W.  298,  11  Am.  St.  nay  v.  Eve,  3  Cranch  (U.  S.)  242,  2 
479;  Mierson  v.  Hope,  2  Sweeney  L.  ed.  427;  The  Mary  Ann  Guest, 
(N.  Y.)  561;  Jewett  V.  Olsen,  18  Ore.  Olcott  (U.  S.)  501,  1  Blatchf.  (U. 
419,  23  Pac.  262,  17  Am.  St.  745;  S.)  358,  Fed  Cas.  No.  9196. 
Stiles  V.  Davis,  1  Black.  (U.  S.)  101,  "Bennett  v.  American  Exp.  Co., 
17  L.  ed.  33.  83  Maine  236,  22  Atl.   159,  13  L.   R. 

'"  Edwards     v.     Transit     Co.,     104  A.  33n.  23  Am.  St.  774;  Baltimore  & 

Mass.  159,  6  Am.  Rep.  213;  Gibbons  O.  R.  Co.  v.  O'Donnell,  49  Ohio  St. 

V.  Farwell,  63  Mich.  344,  6  Am.  St.  489,  32  N.  E.  476,  21  L.  R.  A.  117n. 

301.  34  Am.   St.  579;  Jewett  v.  Olsen,   18 

^"Hutchinson     Carriers     (3d    ed.),  Ore.   419,  23    Pac.   262,    17   Am..   St. 

§  742;  Elliott  R.  R.  (2d  ed.),  §  1537;  745. 

McAlister  v.  Chicago  R.  Co.,  74  Mo.        *"  Baldwin    v.    Great    Northern    R. 

351 ;  note  to  Kohn  v.  Richmond  &c.  Co.,  81   Minn.  247,  83  N.  W.  986,  51 

R.   Co.,  37  S.   Car.   1,   16  S.  E.  376,  L.  R.  A.  640,  83  Am.  St.  370;  Balti- 

24  L.  R.  A.  100,  34  Am.  St.  726;  Stiles  more  &  O.   R.   Co.   v.  O'Donnell,  49 

V.   Davis,   1   Black.    (U.    S.)    101,   17  Ohio  St.  489,  32  N.  E.  476,  21  L.  R. 

L.  ed.  33.  A.   117n,  34  Am.   St.   579. 

^''Ohio     &c.     R.     Co.     V.     Yohe,        "^EHiott   R.    R.    (2d   ed.),    §   1538; 

51  Ind.  181,  19  Am.  Rep.  727;  Merz  Western  &c.  R.  Co.  v.  Thorriton.  60 

V.  Chicago  &  N.  W.  R.  Co.,  86  Minn.  Ga.  300;  Baldwin  v.  Great  Northern 

33,  90   N.   W.  7;   Bliven  v.   Hudson  R.   Co.,  81   Minn.  247,  83  N.  W.  98. 

River  R.  Co.,  36  N.  Y.  403;  Mierson  51   L.   R.   A.   640,   83   Am.    St.   370; 


262  BAILMENTS, 

in  the  carrier's  possession  and  transit  has  either  not  begun  or 
has  been  completed,  or  if  they  are  held  as  b}^  a  warehouseman 
awaiting  delivery,  they  may  be  subject.^^  The  rule  is  that  at- 
tacliment  against  the  consignor  will  not  be  effective,  since  the  pre- 
sumption is  that  the  consignee  is  owner,  but  this  presumption  is 
rebuttable. ^^  Whenever  the  carrier  is  satisfied  that  one  who  sets 
up  a  claim  to  the  goods  is  the  real  owner,  he  may  deliver  up 
possession  to  him  without  legal  proceedings,  but  he  must  show 
clearly  in  an  action  against  him  by  the  consignor  or  consignee 
that  the  claimant  was  the  legal  owner,^''  and  the  carrier  cannot 
of  his  own  motion  set  up  the  adverse  claim  of  another  as  an 
excuse  for  withholding  the  goods  from  the  bailor.^*  However, 
if  an  adverse  claimant  has  requested  him  not  to  deliver  the  goods 
according  to  his  contract,  he  may  prove  in  an  action  by  the  con- 
signee or  consignor  that  such  claimant  was  the  real  owner,  but  if 
he  is  not,  the  carrier's  refusal  to  deliver  is  a  conversion.^*  Fur- 
ther, if  the  claimant  should  be  the  real  owner,  and  the  carrier 
should  refuse  to  deliver  the  goods  to  him,  he  would  also  be  guilty 
of  conversion.^"  Where  the  carrier  is  placed  between  conflicting 
claimants,  and  may  be  liable  to  either  for  conversion,  if  he  delivers 
to  the  other,  and  such  other  should  prove  not  to  be  the  true  owner, 
it  may  be  better  for  the  carrier  to  bring  the  goods  into  court  by  an 

Bates  V.  Chicago,  M.  &  St.  P.  R.  Co.,  The  Idaho,  93  U.  S.  575,  11  Blatchf. 

60  Wis.  296,  19  N  W.  12,  50  Am.  Rep.  (U.  S.)  218. 

369.  "* Hutchinson     Carriers    (3d    ed.), 

^Cooley    V.     Minnesota     Transfer  §  750;   Valentine  v.   Long  Island  R. 

R.  Co.,  S3  Minn.  327,  55  N.  W.  141,  Co.,  92  N.  Y.  S.  645 ;  Wells  v.  Ameri- 

39  Am.  St.  609,  citing  Drake  Attach-  can   Exp.   Co.,   55  Wis.   21,  42   Am. 

ment  453;   Pittsburg,   C.  C.  &  St.  L.  Rep.  695. 

R    Co.  V.  Cox,  36  Ind.  App.  291,  73  ** Hutchinson     Carriers     (3d    ed.), 

N.  E.  120,  114  Am.  St.  377;  Stiles  v.  §  >5'2. 

Davis,   1  Black    (U.   S.)    101,  17  L.\/'" Lester  v.  Delaware,  L.  &  W.  R. 

ed.  33.  Co.,  73  Hun   (N.  Y.)  398,  26  N.  Y. 

=" Elliott   R.  R.    (2d   ed.),    §    1538;  S.  206.     In  a  case  where  the  plaintiff 

Redd  V.   Burrus,   58  Ga.  574;    Pitts-  was  neither  consignee,  consignor  nor 

burg,  C  C.  &  St.  L.  R.  (To.  v.  Cox,  assignee   of   the   bill   of    lading,    but 

36  Ind.  App.  291,  73   N.  E.   120,   114  was  the  owner  of  the  goods  and  the 

Am.    St.   377;    Bingham   v.   Lamping,  ground  of  refusal  to  deliver  to  him 

26  Pa.  St.  340,  67  Am.  Dec.  418.  was   solely   his    failure  to   pay  addi- 

^  Hutchinson     Carriers      (3d    ed.),  tiona!    freight    charges,    it    was    held 

§  749;  Georgia  R.  &  Banking  Co.  v.  the    plaintiff    might    maintain    trover 

Haas,  127  Ga.  187,  56  S.  E.  313,  119  where  the  carrier  sold  the  goods  for 

Am.  St.  327;  Shellenbery  v.  Fremont  such   charges.     Illinois    Cent.  R.    Co. 

«rc.  R.  Co.,  45  Nebr.  487.  63  N.  W.  v.   Seitz,  214  111.  350.  73  N.  E.  585, 

859,  50  Am.  St.  561;  Rosenfield  v.  105  Am.  St.  108.  "  , 
Express  Co.,  1  Woods   (U.  S.)   131; 


TERMINATION    OF    CARRIER    RELATION.  263 

interpleader.®^  The  carrier  may  take  a  reasonable  time  to  investi- 
gate the  title  o£  the  goods,  if  demand  is  made  by  another  than 
the  shipper  or  the  consignee,^-  and  is  not  liable  to  the  holder  of  an 
adverse  claim  if  delivery  is  made  before  his  claim  is  set  up.^^ 
He  is  not  liable  for  refusing  to  allow  goods  to  be  taken  on  a 
legal  process  against  one  other  than  the  owner.^*  The  carrier  is 
not  liable  for  loss  of  goods  during  detention  by  the  custom 
officials  if  destroyed  by  a  fire  which  he  did  not  cause  and  could 
not  prevent,^^  but  if  the  goods  are  held  for  the  payment  of  duties, 
it  is  his  duty  to  turn  the  goods  over  to  the  authorities,  or  store 
them  in  a  safe  place,  and  notify  the  consignees  or  the  shippers.^" 
A  commendable  motive  on  the  ground  of  public  policy  is  no  de- 
fense for  a  failure  to  deliver  by  the  carrier,  as  where  fire-arms 
were  delivered  to  be  carried  to  a  town  in  wliich  there  was  an  in- 
surrection, and  by  the  advice  of  the  governor  of  the  state  the 
fire-arms  were  carried  out  of  the  state,  the  carrier  was  held  liable 
for  conversion.^^  The  consignee's  refusal  to  accept  excuses  non- 
delivery.^® An  order  by  quarantine  officers  not  to  deliver  may  be 
a  defense  for  failure  to  deliver  or  delay  in  delivery,  as  where  the 
Vicksburg  quarantine  officers  refused  to  allow  bananas  shipped 
from  New  Orleans  to  be  unloaded.^^ 

§  245.  Stoppage  in  transitu. — The  carrier  may  excuse 
nondelivery  upon  the  ground  that  the  vendor  has  exercised  the 
right  of  stoppage  in  transitu  which  he  has  after  selling  goods  on 
credit  and  discovering  the  insolvency  of  the  buyer.'*"  This  right 
is  founded  on  the  principle  that  the  property  of  one  person  wlio 

/  ="  Elliott    R.    R.     (2d    ed.),    §1544;  16,  16  N.  Y.  S.  806;  Howell  v.  Grand 

Shellenberg  v.    Fremont   &c.    R.   Co.,  Trunk  R.  Co.,  92  Hun   (N.  Y.)   423, 

45  Nebr.  487,  63  N.  W.  859,  50  Am.  36  N.  Y.  S.  544. 
St.  561,  12  Lewis  Am.  R.  &  Corp.  27.        **  Pennsylvania     Co.     v.     Canadian 

''Solomons   v.   Dawes,    1    Esp.   83;  Pac.  R.  Co..  107  III.  App.  386. 
Merz  V.  Chicago  &c.  R.  Co ,  86  Minn.        "  Baltimore  &  O.  R.  Co.  v.  O'Don- 

ZZ,  90  N.  W.  7;  Rogers  v.  Weir,  34  nell.  49  Ohio  St.  489,  32  N.   E.  476. 

N.  Y.  463.  21  L.  R.  A.  117.  34  Am.  St.  579. 

"Sheridan    v.    New    Quay    Co..    4        '* Central  of   Ga.   R.   Co.  v.   Mont- 

C.  B.   (N.  S.)  618.  93  E.  C.  L.  618;  mollen,  145  Ala.  468,  39  So.  820.  117 

Shellenberg  v.    Fremont  &c.   R.    Co.,  Am.  St.  58. 

45  Nebr.  487,  63  N.  W.  859,  50  Am.        =■»  Alabama  &  V.  R.   Co.  v.  Tirelli, 

St.  561.  93  Miss.  797.  48  So.  962.  21  L.  R.  A. 

"Simpson  V.  Dufour,  126  Ind.  322.  CN.    S.)    731    and   note.    136  Am.    St. 

26  N.  E.  69,  95  Ind.  302.  559.  17  Am.  &  Eng.  Ann.  Cas.  879. 

**  Parker   v.    North    German    Lloyd        ***For   further   discussion    of    Stop- 
Steamship  Co.,  74  App.  Div.  (N.  Y.)  page  in  Transitu  see  article  on  Sales. 


264  BAILMENTS. 

has  not  received  payment  shall  not  be  taken  by  creditors  of  the 
vendee  for  their  debts."  The  right  can  be  asserted  only  against 
one  who  is  insolvent  or  bankrupt,  and  of  whose  condition  the 
vendor  did  not  know  at  the  time  of  the  sale.*-  To  exercise  this 
right  it  is  simply  necessary  to  notify  the  carrier,  forbidding  deliv- 
ery or  telling  him  to  hold  the  goods  subject  to  vendor's  orders,*^ 
but  the  right  may  be  exercised  by  a  possessory  action  or  bill  in 
equity.**  To  make  the  notice  effective,  it  must  be  brought  to  the 
person  in  the  immediate  custody  of  the  goods  in  time  to  prevent 
delivery.*^  The  agent  of  a  vendor  has  authority  to  stop  the 
goods  in  transitu,  whether  a  general  agent  or  a  special  agent  for 
the  purpose.*®  A  consignor  who  is  not  the  vendor  has  not  the 
right  to  stop  the  goods.*^  If  the  bill  of  lading  representing  the 
goods  has  been  transferred  to  a  bona  fide  purchaser,  the  right  of 
stoppage  in  transitu  is  defeated,*^  but  it  is  not  defeated  by  attach- 
ment by  the  consignee's  creditors.**  The  right  may  be  asserted 
as  long  as  the  goods  are  in  the  hands  of  the  carrier,  whether  as 
a  carrier  or  warehouseman,  or  in  the  possession  of  any  middle- 
man delivering  to  the  consignee  or  his  agent.^°     When  the  vendor 

Lickbarrow  v.   Mason,   2   T.    R.   63;  "' Feise     v.     Wraj-,     3     East     93; 

Branan    v.    Atlanta   &c.    R.    Co.,    108  Reynolds  v.  Boston  &c.  R.  Co.,  43  N. 

Ga.  70,  33  S.  E.  836,  75  Am.  St.  26  H.  580;  Chandler  v.  Fulton,  10  Tex. 

and    note;    Rucker    v.    Donovan,    13  2,  60  Am.  Dec.   188. 

Kans.    251,    19   Am.    Rep.    and   note;  *' Memphis  &  L.  R.  R.  Co.  v.  Freed, 

Stiles  V.  Rowland,  32  N.  Y.  309.  38  Ark.  614;   Eaton  v.  Cook,  32  Vt. 

^'Burghall    v.    Howard,    1    H.    Bl.  58. 

365n ;  Snee  v.  Prescott,  1  Atk.  245.  **  Missouri   Pac.  R.  Co.  v.  Heiden- 

"  O'Brien  v.  Norris,  16  Md.  122,  77  heimer,  82   Tex.    195,   17  S.  W.  608, 

Am.    Dec.   284;    Fenkhausen    v.    Eel-  27  Am.  St.  861. 

lows,    20    Nev.    312,    21    Pac.    886,    4  *»Bayonne    Knife    Co.    v.    Umben- 

L.  R.  A.  732;  Jeffris  v.  Fitchburg  R.  hauer,   107  Ala.   496,    18   So.   175,  54 

Co.,  93  Wis.  250,   67   N.   W.  424,   33  Am.    St.    114    and    note;    Earrell    v. 

L.  R.  A.  351,  57  Am  St.  919.  Richmond  &  D.  R.  Co.,  102  N.  Car. 

"  Rucker  v.  Donovan,  13  Kans.  251,  390,  9  S.  E.  302,  3  L.  R.  A.  647n,  11 

19  Am.  Rep.  84;  Allen  v.  Maine  &c.  Am.  St.  760. 

R.  Co.,  79  Maine  327,  9  Atl.  895,  1  '"Bethell   v.   Clark,  20   Q.   B.   Div. 

Am.   St.  310;   Reynolds  v.   Boston  &  615;  Lj^ons  v.  Hoffnung,  15  App.  Cas. 

M.  R.   Co.,  43   N.  H.  580.  39;    Branan    v.    Atlanta   &c.    R.    Co., 

**Schotsmans  v.  Lancashire  &c.  R.  108  Ga.  70,  33  S.  E.  836,  75  Am.  St. 

Co.,  L.  R.  1  Eq.  349,  L.  R.  2  Ch.  App.  26;  Rogers  v.  Schneider,  13  Ind.  App. 

332 ;  Ford  v.  Sprowle,  2  A.  K.  Marsh.  23,  41    N.  E.  71 ;   Wheeling  &  L.   E. 

(Ky.)  528,  12  Am.  Dec.  439;  Hausev.  R.   Co.  v.    Koontz,  61    Ohio   St.    551, 

Judson,  4  Dana  (Ky.)  7,  29  Am.  Dec.  56  N.  E.  471,  76  Am.  St.  435;  Jenks 

377n.  V.   Fulmer,   160   Pa.   St.   527,  28  Atl. 

« Whitehead  v.  Anderson,  9  M.  &  841;  Harris  v.  Tenney,  85  Tex.  254, 

W.  518;   Rosenthal   v    Weir,   170   N.  20  S.  W.  82,  34  Am.  St.  796. 
Y.  148,  63  N.  E.  65,  57  L.  R.  A.  527. 


TERMINATION    OF    CARRIER    RELATION.  265 

has  made  a  demand  upon  the  carrier  for  the  goods,  or  served 
notice  of  stoppage  in  transitu,  or  asserted  his  claim,  he  is  consid- 
ered constructively  in  possession  of  the  goods. ^^  If  the  buyer  is 
in  fact  solvent  at  the  time  the  vendor  attempts  to  stop  the  goods, 
the  duty  of  the  carrier  is  not  to  deliver  them  up,  but  to  carry 
them  to  their  destination,  and  he  is  liable  if  he  delivers  them  up,'" 
but  if  insolvent  and  he  delivers  them  to  the  consignee  after  notice 
he  is  liable  to  the  vendor.^^  If  the  carrier  wrongfully  delivers 
the  goods  after  a  notice  of  stoppage  in  transitu,  he  is  liable  for 
the  full  value  of  them,  stipulation  in  the  bill  of  lading  as  to  agreed 
valuation  notwithstanding.^*  In  order  to  protect  himself,  the 
carrier  may  require  a  reasonable  time  to  investigate  whether  the 
buyer  is  insolvent  in  doubtful  cases,  and  if  unable  to  satisfy  him- 
self may  resort  to  the  courts  to  have  the  question  of  the  right  of 
possession  of  the  goods  determined.^^  One  who  is  not  a  party 
to  the  contract  of  shipment,  neither  vendor  nor  consignee,  cannot 
hold  the  carrier  for  failure  to  stop  goods  in  transitu  at  his  re- 
quest/* 

§  246.  Receipt  for  delivery. — The  carrier  has  a  right  to 
demand  a  receipt  as  written  evidence  upon  the  delivery  of  the 
goods,  and  may  be  excused  for  failure  to  deliver  by  the  con- 
signee's refusal  to  give  a  receipt  on  request."  He  may,  as  a 
condition  of  the  delivery  of  a  part  of  the  goods,  demand  a  receipt 
for  the  whole,  if  the  owner  desires  to  remove  them  in  separate 
parcels  and  at  different  times.^*    He  may  require  the  production 

*^Litt    V.    Cowley,    7    Taunt.    169;  ^  See   cases   cited   in   last   note  31, 

Rowley  v.  Bigelow,  12  Pick.   (Mass.)  ante. 

307,  23  Am.  Dec.   607;   Rosenthal  v.  '"Switzler  v.  Northern  Pac.  R.  Co., 

Weir,  170  N.  Y.  148,  63  N.  E.  65.  57  45  Wash.  221,  88  Pac.   137,  12  L.  R. 

L.   R.   A.  527.  A.    (N.   S.)    254n,    122   Am.   St.   892, 

^'Hutchinson     Carriers     (3cl.    ed.),  13   Am.  &   Eng.   Ann.   Cas.  357  and 

§  ni ;  The  Tigress,  32  L.  J.  Adm.  97 ;  note. 

The  Vidette,  34  Fed.  396;  The  E.  H.  "The  Ethel,  59  Fed.  473;  Bass  v. 

Pray,  27  Fed.  474.  Glover,  63  Ga.  745 ;   Skinner  v.   Chi- 

"  Allen  V.   Maine   Cent.   R.   Co.,  79  cago  &c.  R.  Co.,  12  Iowa  191 ;  .A.yres 

Maine  327,  9  Atl.  895,  1  Am.  St.  310;  v.   Morris  &  Essex  R.   Co.,  5  Dutch. 

Bloomingdale  v.  Memphis  &c.  R.  Co.,  (N.  J.)  393,  80  Am.  Dec.  215. 

6  Lea   (Tenn.)   616;   Poole  v.  Hous-  ''^Ayres  v.  Morris  &  Essex  R.  Co., 

ton  &c.  R.  Co.,  58  Tex.  134.  5  Dutch.    (N.  J.)   393,  80  Am.  Dec. 

"Rosenthal    v.    Weir,    170    N.    Y.  215. 
148,  tZ  N.  E.  65,  57  L.  R.  A.  527. 


266  BAILMENTS. 

of  the  bill  of  lading  before  delivery,^®  but  not  under  all  circum- 
stances its  surrender,^"  and  may  waive  the  production  by  refusing 
to  deliver  for  some  other  reason  than  nonproduction.®^ 

§  247.     Delivery  to  connecting  carrier,  and  liability  of  con- 
necting carrier — In  general. — Though  a  carrier  may  contract 

for  the  carriage  of  goods  beyond  his  own  line,  he  is  not  bound  so 
to  do,^^  and  the  general  rule  is  that  when  he  accepts  goods  to  be 
transported  beyond  his  destination,  his  liability  as  carrier  ter- 
minates when  he  has  delivered  them  to  the  next  succeeding  car- 
rier.®^ But  if  he  has  contracted  for  the  through  carriage  of  the 
goods,  he  is  liable  for  their  safety  until  the  final  destination  is 
reached,^^  and  succeeding  carriers  become  merely  his  agents.®^ 
The  English  rule,  followed  in  several  of  our  states,  holds  that 
when  the  carrier  accepts  for  carriage  goods  directed  to  a  destina- 
tion beyond  his  own,  he  assumes,  merely  by  accepting  them,  the 
contract  to  carry  them  to  the  place  to  which  they  are  directed, 
and  no  express  contract  is  necessary  to  hold  him  to  such  liability, 
but  the  contract  to  carry  through  is  implied  from  the  acceptance.^" 
The  so-called  American  rule  is  that,  in  the  absence  of  a  special 
contract,  the  carrier  accepting  goods  is  bound  only  to  carry  them 
over  his  own  line  and  deliver  them  to  the  connecting  carrier,  no 
contract  to  carry  through  being  implied  from  the  acceptance  of 

°''  See  cases  cited  under  last  note  56.  §  226 ;    Chicago,   I.   &  C   R.   Co.   v. 

See  first  note  22,  ante.  Woodward,    164   Ind.   360,   72   N.    E. 

'"Gulf  &c.  R.  Co.  V.  McCown  (Tex.  558,  11  N.  E.  810:  Texas  &c.  R.  Co. 

Civ.  App.),  25  S.  W.  435;  Dwyer  v.  v.  Reiss,  183  U.  S.  621,  46  L.  ed.  358, 

Gulf  &c.  R.  Co.,  69  Tex.  707,  7  S.  W.  22  Sup.  Ct.  253. 

504.  '"Virginia     Coal    &    Iron    Co.    v. 

"  Clegg  V.  Southern  R.  Co.,  135  N.  Louisville  &  N.   R.  Co.,  98  Va.  776, 

Car.   148,  47  S.  E.  667,  65  L.  R.  A.  Zl  S.  E.  310. 

717.  ®*Muschamp    v.    Lancaster    &c.    R. 

"=  Hutchinson     Carriers     (3d    ed.),  Co.,  8  M.  &  W.  421;  Willy  v.  West 

§  240 ;   Seasongood  v.  Tennessee  &c.  Cornnall  R.  Co.,  2  H.  &  N.  703 ;  Grant 

Transp.    Co..   21    Kv.    L.    1142,   54    S.  v.  Northern  Pac.  R.  Co..  24  Can.  Sup. 

W.  193,  49  L.  R.  A.  270;  cases  cited  Ct.    546;    Southern   R.    Co.   v.   Levy, 

in  note,  31  L.  R.  A.  (N.  S.)  3.  144  Ala.  614.  39  So.  95;  Kansas  Citv. 

'•^  Post  V.  Southern  R.  Co.,  103  Tenn.  F.  S.  &  M.  R.  Co.  v.  Washington,  74 

184.  52  S.  W.  301,  55  L.  R.  A.  481.  16  Ark.  9.  85   S.  W.  406,  69  L.   R.   A. 

Am.   &   Eng.    R.    Cas.    (N.   S.)    201;  65.   109  Am.    St.   61;    Atlantic  Coast 

Rov  V.  Chesapeake  &  O.  R.   Co.,  61  Line   R.   Co.   v.   Henderson,   131   Ga. 

W.   Va.   616.   57   S.   E.   39,  31  L.   R.  75.  61   S.   E.   1111;   Illinois  Cent.   R. 

A.    (N.    S.)     1,    and    very    complete  Co.  v.  Carter.  165  Til.  570.  ¥>  N.  E. 

note   on   liability  of   connecting  car-  374.  36  L.  R.  A.  .'^27:  Wabash  R.  Co. 

rier  for  loss  beyond  its  own   line.  v.  Thomas,  222  Til.  ZV .  78  N.  E.  777, 

**  Hutchinson     Carriers     (3d    ed.),  7  L.  R.  A.  (N.  S.)  1041n;  Carter  v. 


TERMINATION    OF    CARRIER   RELATION. 


267 


goods  billed  to  a  destination  beyond  his  own.^^  The  carrier  may 
by  special  contract  exclude  liability  beyond  the  terminus  of  his 
route.®*  By  the  federal  statute  known  as  the  Carmack  amend- 
ment to  the  Hepburn  Act,  a  carrier  accepting  goods  for  interstate 
shipment  is  liable  to  the  holder  of  the  bill  of  lading  for  damages 
anywhere  en  route,*'^  and  some  of  the  states  have  similar  statutes 
applying  to  shipments  within  the  state.'" 

§  248.  Who  is  a  connecting  carrier. — According  to  the 
definition  quoted  in  Hutchinson  on  Carriers  and  Elliott  on  Rail- 
roads, a  connecting  carrier  is  "one  whose  route,  not  being  the  first 
one,  lies  somewhere  between  the  point  of  shipment  and  the  point 
of  destination.  It  becomes  such  by  virtue  of  the  agreement 
between  the  consignor  or  shipper  and  the  first  carrier,  whereby 
the  latter  undertakes  to  deliver  the  shipment  at  its  ultimate 


Chicago,  M.  &  St.  P.  R.  Co.,  146 
Iowa  201,  125  N.  W.  94;  East  Tenn. 
V.  &  G.  R.  R.  Co.  V.  Rogers,  6 
Heisk.  (Tenn.)  143,  19  Am.  Rep. 
589;  Florida  Cent.  &  Peninsula  R. 
Co.  V.  United  States,  43  Ct.  CI.  (U. 
S.)  572;  Windmiller  v.  Northern 
Pac.  R.  Co.,  52  Wash.  613,  101  Pac. 
225. 

*'  Naugatuck  R.  Co.  v.  Waterbury 
Button  Co.,  24  Conn.  468;  Chicago, 
I.  &  L.  R.  Co.  V.  Woodward,  164  Ind. 
360,  72  N.  E.  558,  1Z  N.  E.  810 ;  Mis- 
souri Pac.  R.  Co.  V.  Houston,  10 
Kans.  App.  356,  59  Pac.  688;  Illinois 
Cent.  R.  Co.  v.  Curry,  127  Ky.  643, 
106  S.  W.  294;  Vincent  v.  Yazoo  &c. 
R.  Co.,  114  La.  1021,  38  So.  816; 
Colbath  V.  Bangor  &c.  R.  Co.,  105 
Maine  379,  74  Atl.  918,  134  Am.  St. 
569;  Hoffman  v.  Cumberland  &c.  R. 
Co.,  85  Md,  391,  TH  Atl.  214;  Pender- 
gast  V.  Adams  Exp.  Co.,  101  Mass. 
120;  Rickerson  Roller  Mills  Co.  v. 
Grand  Rapids  &c.  R.  Co.,  67  Mich. 
110,  34  N.  W.  269;  Lawrence  v. 
Winona  &c.  R.  Co.,  15  Minn.  390 
(Gil.  313),  2  Am.  Rep.  130;  Lowen- 
burg  V.  Jones.  56  Miss.  688,  31  Am. 
Rep.  379:  Connoltv  v.  Illinnis  Cent. 
R.  Co.,  133  Mo.  App.  310,  113  S.  W. 
233;  Jennings  v.  Grand  Trunk  R.  Co.. 
127  N.  Y.  438,  28  N.  E.  394;  Wat- 
son V.  Atlantic  Coast  Line  R.  C^o.,  145 
N.  Car.  236.  59  S.  E.  55:  TaflFe  v. 
Oregon  R.  Co.,  41  Ore.  64,  67  Pac. 


1015,  68  Pac.  732,  58  L.  R.  A.  187; 
Clyde  V.  Hubbard,  88  Pa.  358;  Knight 
V.  Providence  &c.  R.  Co.,  13  R.  I.  572, 
43  Am.  Rep.  46 ;  Galveston  &c.  R.  Co. 
V.  Noelke  (Tex.  Civ.  App.),  110  S.  W. 
%2;  Michigan  Cent.  R.  Co.  v.  Min- 
eral Springs  Mfg.  Co.,  16  Wall.  (U. 
S.)  318,  21  L.  ed.  297;  Farmers'  &c. 
Bank  v.  Champlain  Transp.  Co.,  2Z 
Vt.  186,  56  Am.  Dec.  68;  McConnell 
V.  Norfolk  &c.  R.  Co..  86  Va.  248,  9 
S.  E.  1006;  Roy  v.  Chesapeake  &  O. 
R.  Co.,  61  W.  Va.  616,  57  S.  E.  39,  31 
L.  R.  A.  (N.  S.)  1,  and  note  citing 
many  other  cases  on  both   sides. 

®* Hutchinson  Carriers  3d  ed.), 
§  233,  and  cases  cited;  note,  31  L.  R. 
A.  (N.  S.)  69,  and  cases  cited;  Fre- 
mont &c.  R.  Co.  v.  New  York.  C.  & 
St.  L.  R.  Co.,  66  Nebr.  159.  92  N.  W. 
131,  59  L.  R.  A.  939 ;  Nashville,  C.  &  St. 
L.  R.  Co.  V.  Stone.  112  Tenn.  348, 
79  S.  W.  1031,  105  Am.  St.  955; 
Myrick  v.  Michigan  Cent.  R.  Co.,  107 
U.  S.  102,  27  L.  ed.  325. 

®*  Atlantic  Coast  Line  R.  Co.  v. 
Riverside  Mills,  219  U.  S.  186,  55  L. 
ed.  167,  31  Sup.  Ct.  164,  31  L.  R.  A. 
(N.  S.)  7  and  note. 

^"For  review  of  cases  involving 
statutes  as  to  the  liability  of  the  first 
or  connecting  carrier,  see  note  31  L. 
R.  A.  (N.  S.)  26-28.  52-3,  91.  99. 
Marshall  &c.  Grain  Co.  v.  Kansas 
City  R.  Co.,  176  Mo.  480,  75  S.  W. 
638,  98  Am.  St.  508. 


268  BAILMENTS. 

destination,  and  thus  makes  the  carrier  beyond  its  own  route  its 
agent  for  continuing  the  transportation,  or  else  undertakes  only 
to  deliver  the  goods  safely  to  the  next  carrier  on  the  route,  who 
thus  becomes  the  agent  of  the  shipper  for  carrying  them  far- 
ther."^^  A  transfer  company  is  not  held  to  be  a  connecting  carrier, 
but  instead,  the  agent  of  the  company  employing  it  to  transfer  the 
goods  to  a  connecting  carrier,'^^  and  so  the  transfer  company 
employed  by  the  last  carrier  to  deliver  goods  is  not  a  connecting 
carrier.''^  The  connecting  carrier's  liability  begin's  with  the 
actual  or  constructive  delivery  to  it.'^'*  It  is  held  to  the  same  duty 
to  receive  goods  from  a  prior  carrier  that  it  owes  to  any  other 
shipper,  or  to  the  public  at  large,'^^  but  it  is  not  obliged  to  receive 
goods  from  a  prior  carrier  unless  they  are  offered  in  a  condition 
fit  for  further  transportation/^ 

§  249.  Contract  for  through  carriage. — If  the  contract  is 
express  for  through  carriage,  there  is,  of  course,  little  difficulty 
in  fixing  its  terms,  but  such  a  contract  must  be  clear  and  unam- 
biguous in  order  to  bind  the  carrier."  It  often  becomes  a  ques- 
tion of  fact  to  be  ascertained  from  circumstances  whether  there 
was  an  implied  contract  for  through  carriage,  and,  in  such  a  case, 
evidence  may  be  introduced  that  the  goods  were  marked  to  be 
carried  through,  that  a  through  rate  was  paid,  and  that  there 
was  an  agreement  for  them  to  be  carried  through  in  a  certain 
car,  that  the  usage  was  to  carry  goods  through,  and  many  other 
similar  facts.'^*     It  may  be  shown  from  the  stipulations  of  the 

"Hutchinson     Carriers     (3d    ed.),  N.  W.  321,  54  Am.  Rep.  Z(i1,  18  Am. 

§  247;  Elliott  R.  R.  (2d  ed.),  §  1442;  &  Eng.  R.  Cas.  574;  Sprague  v.  New 

Nanson   v.   Jacob,   12   Mo.  App.   125.  York  Cent.  R.  Co.,  52  N.  Y.  dZI ;  St. 

"Alabama,  G.  S.  R.  Co.  v.  Tliomas,  Louis    Ins.    Co.   v.    St.    Louis,   V.   T. 

89  Ala.  294,   7   So.   762,   18  Am.   St.  R.  Co..   104  U.   S.   146,  26  Fed.  679. 

119;  Western  &c.  R.  Co.  v.  Exposi-  "Elliott  R.  R.    (2d  ed.),  §   1443a; 

tion   Cotton   Mills,  81    Ga.   522,  7  S.  Hall  v.  Wabash  &c.  R.  Co.,  80  Mo. 

E.  916,  2  L.  R.  A.  102;  Texas  &  P.  App.   463;   Ft.   Worth  &c.   R.   Co.  v. 

R.  Co.  V.  Scoggin,  40  Tex.  Civ.  App.  Masterson,   95    Tex.    262,  66    S.    W. 

526,  90  S  W.  521.  833. 

"Roach  V.   Canadian   Pac.  R.  Co.,  '*Buston   v.    Pennsylvania   R.    Co., 

1  Manitoba  158;  Nanson  v.  Jacob,  93  116  Fed.  235. 

Mo.  331,  6  S.  W.  246,  3  Am.  St.  531.  "Taylor   v.    Maine    Cent.    R.    Co., 

'*  Selma  &  IVIeridian  R.  Co.  v.  Butts,  87  Maine  299,  32  Atl.  905 ;  Myrick  v. 

43  Ala.  385,  94  Am.  Dec.  694;  Peter-  IMichigan  &c.  R.  Co.,  107  U.  S.   102, 

sen  V.  Case,  21   Fed.  885,   18  Am.  &  27  L.  ed.  325,  1  Sup.  Ct.  425. 

Eng.   R.    Cas.   578;    Condon   v.   Mar-  ''*  Hutchinson     Carriers     (3d    ed.), 

quette  &c.  R.  Co.,  55  I^Iich.  218,  21  §  238;  Falvey  v.  Georgia  R.  Co..  76 


TERMINATION  OF  CARRIER  RELATION. 


269 


bill  of  lading  that  the  car  was  received  subject  to  the  company's 
liability  as  a  common  carrier  in  the  various  states  through  which 
it  was  to  pass/^  that  the  carrier  had  the  right  to  select  the  con- 
necting carriers,  and  had  an  arrangement  by  which  a  through  rate 
was  agreed  upon  with  the  other  carriers,  in  which  ail  shared,®" 
that  the  contract  was  that  the  goods  were  to  be  transported  to  the 
destination,  where  the  American  rule  holds.®^  The  payment  of  a 
through  rate,®^  or  the  giving  of  a  through  waybill,®^  while  evi- 
dence of  a  through  contract,  are  not  conclusive.  Under  a  contract 
for  through  carriage,  the  carrier  may  contract  for  such  exemp- 
tions from  liability  as  he  could  were  the  carriage  entirely  over  his 
own  lines,  and  no  more;  and  such  contract  will  enure  to  the 
benefit  of  all  succeeding  carriers,  if  so  stipulated.®*  It  has  been 
held  that  the  following  indicated  an  express  contract  to  carry 
through:  a  receipt  for  goods  marked  for  a  point  beyond  the 
carrier's  line,  which  leaves  the  blank  for  destination  unfilled  f'' 
an  agreement  to  forward  to  final  destination,  for  if  the  actual 


Ga.  597,  2  Am.  St.  58;  Hill  M.  Co. 
V.  Boston  &  L.  R.  R.  Corp.,  104  Mass. 
122,  6  Am.  Rep.  202 ;  Berg  v.  Steam- 
ship Co.,  5  Daly  (N.  Y.)  394;  Root 
V.  Great  Western  R.  Co.,  45  N.  Y. 
524;  Quimby  v.  Vanderbilt,  17  N.  Y. 
306,  72  Am.  Dec.  469;  International 
&  G.  N.  R.  Co.  V.  Tisdale,  74  Tex. 
8,  11  S.  W.  900,  4  L.  R.  A.  545n; 
Evansville  &c  R.  Co.  v.  Androscoggin 
Mills,  22  Wall.  (IJ.  S.)  594,  22  L.  ed. 
724.  See  cases  cited  in  note,  31  L. 
R.  A.  (N.  S.)  14  et  seq. 

'"Johnson  v.  Toledo,  S.  &  C.  R. 
Co.,  133  Mich.  596,  95  N.  W.  724,  103 
Am.  St.  464. 

'"Eckles  V.  Missouri  Pac.  R.  Co., 
112  Mo.  App.  240,  87  S.  W.  99. 

*^  Colfax  Mt.  Fruit  Co.  v.  Southern 
Pac.  R.  Co.,  118  Cal.  648,  46  Pac. 
668,  50  Pac.  775,  40  L.  R.  A.  78 ;  Ire- 
land V.  Mobile  R.  Co.,  105  Ky.  400,  49 
S.  W.  188,  453,  20  Ky.  L.  1586. 

*'  Peruna  Co.  v.  Dickson,  31  Ind. 
App.  451,  67  N.  E.  538;  Taylor  v. 
Maine  Cent.  R.  Co.,  87  Maine  299, 
32  Atl.  905:  Eckles  v.  Missouri  Pac. 
R.  Co.,  112  Mo.  App  240,87  S.W. 99; 
Chouteaux  v.  Leech,  18  Pa.  224,  57 
Am.  Dec.  602;  Ogdensburg  &  I..  C. 
R.  Co.  V.  Pratt,  22  Wall.  (U.  S.)  123, 


22  L.  ed.  827,  49  How.  Prac.  (N.  Y.) 
84;  Mann  v.  Birchard,  40  Vt.  326,  94 
Am.  Dec.  398;  Sumner  v.  Walker,  30 
Fed.  261;  Fremont,  E.  &  M.  V.  R. 
Co.  V.  New  York  &c.  R.  Co.,  66  Nebr. 
159,  92  N.  W.  131,  59  L.  R.  A.  939; 
McKay  v.  New  York  &c.  R.  Co..  50 
Hun  (N.  Y.)  563,  20  N.  Y.  St.  816. 
3  N.  Y.  S.  708;  Myrich  v.  Michigan 
&c.  R.  Co.,  107  U.  S.  102,  27  L.  ed. 
325,  1  Sup.  Ct.  425. 

""Falvey  v.  Georgia  R.  Co.,  76  Ga. 
597,  2  Am.  St.  58;  Goldsmith  v.  Chi- 
cago &c.  R.  Co.,  12  Mo.  App.  479; 
Miller  Grain  &c.  Co.  v.  Union  P.  R. 
Co.,  138  Mo.  658,  40  S.  W.  894;  St. 
Louis  Ins.  Co.  V.  St.  Louis  &c.  R.  Co., 
104  U.  S.  146,  26  L.  ed.  679. 

^Elliott  R.  R.  (2d  ed.),  §  1446; 
Mears  v.  New  York  &c.  R.  Co.,  75 
Conn.  171,  52  Atl.  610.  56  L.  R.  A. 
884,  96  Am.  St.  192 ;  Adams  Exp.  Co. 
V.  Harris,  120  Ind.  73,  21  N.  E.  340. 
7  L.  R.  A.  214,  16  Am.  St.  315;  Bird 
V.  Southern  R.  Co..  99  Tenn.  719.  42 
S.  W.  451.  63  Am.  St.  856. 

^  L^nion  Pac.  R.  Co.  v.  Johnson, 
45  Nebr.  57,  63  N.  W.  144,  50  Am.  St. 
540;  Cutts  V.  Brainard,  42  Vt.  566, 
1  Am.  Rep.  353. 


270  BAILMENTS. 

contract  is  to  carry  the  goods  through,  it  is  immaterial  that  the 
carrier  in  his  receipt  has  made  use  of  the  words  "to  forward"  or 
"to  be  forwarded"  as  describing  the  contract,  and  the  real  agree- 
ment may  be  shown  f^  stipulations  binding  connecting  lines,  and 
applying  limitations  to  connecting  lines  f^  shipment  on  one  line 
with  the  privilege  of  changing  the  destination  to  a  point  be- 
yond f^  and  a  contract  to  deliver  at  a  point  beyond.®*  The  fol- 
lowing are  held  to  negative  a  through  contract :  a  stipulation  for 
delivery  at  the  first  carrier's  terminus  or  junction  point  ;^''  an 
agreement  to  forward  to  the  point  nearest  the  destination 
reached  by  the  carrier's  line  f^  an  agreement  to  carry  to  the  des- 
tination if  on  the  line,  otherwise  to  deliver  to  a  connecting  car- 
rier f^  an  agreement  to  deliver  to  the  consignee  or  the  next  con- 
necting carrier  f^  or  an  agreement  limiting  liability  to  the  carrier's 
own  line.®* 

§  250.  Authority  to  make  through  contract. — Under  a 
contract  for  through  carriage,  the  carrier  may  make  such  exemp- 
tions from  liability  as  he  could  were  the  carriage  entirely  over 
his  own  lines,  and  no  more,  and  such  contract  will  inure  to  the 

™  Colfax  Mt.  Fruit  Co.  v.  Southern  cinnati,  Hamilton  &c.  R.  Co.  v.  Pon- 

Pac.  R.  Co.,  118  Cal.  648,  46  Pac.  668,  tius,    19    Ohio    St.    221.   2   Am.    Rep. 

50  Pac.  775,  40  L.  R.  A.  78;  Davis  v.  391;  Cases  cited  31  L.  R.  A.  (N.  S.) 

Jacksonville    Southeastern    Line,    126  pp.  56-57. 

Mo.  69,  28  S.  W.  965 ;  Eckles  v.  Mis-  '^  Pendergast  v.   Adams   Exp.   Co., 

souri  Pac.  R.  Co.,  112  Mo.  App.  240,  101  Mass.  120;  American  Exp.  Co.  v. 

87  S.  W.  99;  East  Tennessee  &c.  R.  Second  Nat.  Bank,  69  Pa.  St.  394,  8 

Co.  V.  Rogers,  6  Heisk.  (Tenn.)   143,  Am.  Rep.  268. 

19  Am.  Rep.  589 ;  Cutts  v.  Brainard,  "^  Pennsylvania   Co.  v.   Dickson,  31 

42  Vt.  566,  1  Am.  Rep.  353.  Ind.  App.  451,  67  N.  E.  538;  Skinner 

*' Missouri   Pac.  R.  Co.  v.  Ryan,  2  v.  Hall,  60  Maine  477;   McEacheran 

Willson  (Tex.  App.  Civ.  Cas.)  430.  v.  Michigan  Cent.  R.  Co.,   101   Mich. 

''  White  v.  Missouri  Pac.  R.  Co.,  19  264,   59   N.    W.   612 ;    Glazer  v.    Old 

Mo.  App.  400;  Texas  &c.  R.  Co.  v.  Dominion  S.  S.  Co.,  103  N.  Y.  S.  112. 

Gallagher  (Tex.  Civ.  App.),  64  S.  W.  »' Atchison,   T.   &   S.   F.   R.   Co.   v. 

809.  Richardson,    53    Kans.    157,    35    Pac. 

*" Bryan  v.  Memphis  &c.  R.  Co.,  11  1114;    Schneider   v.   Evans,   25   Wis. 

Bush    (Ky.)    597;   Blackmer  &c.   Co.  241,  3  Am.  Rep.  56. 

v.   Mobile  &c.  R.   Co.,   137  Mo.   App.  "Mulligan  v.  Illinois  Cent.  R.  Co., 

133,  479,  119  S.  W.  1,  13;  Condict  v.  36  Iowa  181,  14  Am.  Rep.  514;  Ortt 

Grand  Trunk  R.  Co.,  54  N.  Y.  500,  v.  Minneapolis  &c.  R.  Co..  36  Minn, 

affg.  4  Lans.    (N.  Y.)    106;   Kyle  v.  396,  31  N.  W.  519;  McCann  v.  Eddy, 

Laurens  R.  Co,  10  Rich.  L.  (S.  Car.)  133   Mo.   59,  33   S.   W.   71,   affd.    174 

382,  70  Am.  Dec.  231.  U.  S.  580.  43  L.  ed.  1093,  19  Sup.  Ct. 

""Rome  R.  Co.  v.  Sullivan.  25  Ga.  755.  35  L.  R.  A.  110;  Keller  v.  Balti- 

228;  Fremont,  E.  &  M.  V.  R.  Co.  v.  more  &  Ohio  R.  Co.,  196  Pa.  57,  46 

New  York  &c    R.  Co.,  66  Nebr.  159,  Atl.  261. 
92  N.  W.  131,  59  L.  R,  A.  939;  Cin- 


TERMINATION    OF    CARRIER    RELATION.  2yi 

benefit  of  all  succeeding  carriers,  if  so  stipulated,"^  but  where  a 
carrier  cannot  contract  against  the  consequences  of  his  own  neg- 
ligence, neither  can  he  contract  against  the  negligence  of  a  con- 
necting carrier.®*^  While  a  general  agent  may  bind  the  carrier 
by  a  contract  for  through  carriage,®^  it  is  held  that  authority  in 
a  local  freight  agent  or  station  agent  to  make  a  through  contract 
will  not  be  implied,"®  but  that  a  usage  for  him  to  receive  goods 
for  through  carriage  may  be  shown  and  wall  bind  his  principal."^ 
In  the  later  cases,  it  is  held  that  it  is  not  beyond  the  powers  of  an 
incorporated  carrying  company  which  receives  all  its  powers  from 
a  charter  to  make  contracts  for  through  carriage,  even  though 
by  the  terms  of  its  incorporation  it  is  limited  to  routes  between 
certain  points.^  Unless  a  custom,  course  of  dealing  or  agreement 
is  shown,  the  initial  carrier  has  no  authority  to  make  a  contract 
w^iich  will  bind  the  connecting  carrier,^  but  if  such  connecting 
carrier  accepts  the  goods  under  the  contract  of  the  first  carrier, 
it  is  held  to  have  adopted  and  ratified  it.^ 

§251.  Which  carrier  is  liable  to  consignee. — The  carrier 
whose  default  has  caused  loss  is  liable  to  the  consignee  in  all 
states  except  Georgia.*  If  the  first  carrier  has  contracted  for 
through  transportation,  or  is  by  statute  made  liable  for  through 
transportation,  it  is  liable  for  loss  occasioned  by  any  connecting 

*^  See  citations  under  note  84.  ""  Perkins  v.   Portland  &c.   R.   Co., 

** Hutchinson     Carriers     (3d    ed.),  47    Maine    573,    74    Am.    Dec.    507; 

§  240 ;   Halliday  v.   St.  Louis  &c.  R.  Faulkner  v.  Chicago,  R.  I.  &c.  R.  Co., 

Co.,  74  Mo.   159,  41   Am.   Rep.  309;  99  Mo.  App.  421,  7i  S.  W.  927;  Og- 

Cincinnati,  Hamilton  &  Dayton  &c.  R.  densburg,  L.   C.   R.   Co.   v.   Pratt,  22 

Co.  V.   Pontius,   190  Ohio   St.  221.  2  Wall.   (U.  S.)   123,  22  L.  ed.  827. 

Am.  Rep.  391;  Galveston  &c.  R.  Co.  'Hill  Mfg.  Co.  v.  Boston  &  L.  R. 

V.  Allison,  59  Tex.  193.  Corp.,  104  Mass.  122,  6  Am.  Rep.  202 ; 

■^Loomis  V.  Wabash  &c.  R.  Co.,  17  Swift  v.  Pacific  Mail  Steamship  Co., 

Mo.  App.  340 ;  Baltimore  &  P.  Steam-  106  N.  Y.  206,  12  N.  E.  583 ;  Chesa- 

boat  Co.  V.  Brown,  54  Pa.  77;  North-  peake  &  O.  R.  R.  Co.  v.  Howard,  178 

ern    P.   R.   Co.  v    American  T.    Co.,  U.  S.  153,  44  L.  ed.  1015,  20  Sup  Ct. 

195  U.  S.  439,  49  L.  ed.  269,  25  Sup.  880. 

Ct.  84.  *  Hutchinson     Carriers     (2d     ed.), 

•"McLagan  v.  Chicago  &c.  R.  Co.,  §  248;  Texas  &c.  R.  Co.  v    Scoggin, 

116  Iowa  183,  89  N.  W.  233;  HofTman  40  Tex.  Civ.  App.  526,  90  S.  W.  521. 

V   Cumberland  V.  R.  Co..  85  Md.  391,  ^Houston  &c.  R.  Co.  v.  Everett,  99 

37  Atl.  214;  Burroughs  v.  Norwich  &  Tex.  269,  89  S.  W.  761. 

W.  R.  Co..  100  Mass.  26,  1  Am.  Rep.  "Elliott   R.    R.    (2d   ed.),    §§    1442. 

78;   Roy  v    Chesapeake   &c.   R.   Co.,  1448;   Cavallarro  v.   Texas   &   P.   R. 

61  W.  Va.  616,  57  S.  E.  39,  31  L.  R.  Co..  110  Cal.  348,  42  Pac.  918,  52  Am. 

A    (N.  S.)  1.  St.  94;  111.  Cent.  R.  Co.  v.  Cowles.  32 

III.  116,  117;  International  &c.  R.  Co. 


272 


BAILMENTS. 


'carrier/  So  where  the  loss  has  occurred  on  the  connecting  car- 
rier's line,  both  it  and  the  first  carrier  may  be  liable  to  the  con- 
signee. The  presumption  in  case  of  damage  or  loss  to  goods  is 
that  each  carrier  received  the  goods  in  good  order,*  and  that  the 
last  carrier  is  in  fault,  but  this  obtains  only  in  the  absence  of 
proof.'^  Unless  there  is  a  partnership,  express  or  implied,  between 
the  carriers,  a  connecting  carrier  cannot  be  held  for  the  default  of 
the  initial  or  other  connecting  carriers,^  but,  if  a  partnership  exists, 
they  are  jointly  and  severally  liable  for  loss,^  and  if  there  is  such 
an  agreement,  usage  or  custom  existing  between  them  that  one 
can  be  held  to  be  the  actual  or  implied  agent  of  the  other,  they 
may  be  jointly  liable.^*'  If  they  participate  in  the  profits  of  the 
carriage  in  certain  proportions  or  in  its  net  receipts,  they  are  held 
as  partners;"  if  they  employ  a  joint  agent,  they  are  held  liable  as 
joint  principals  for  his  defaults,  but  are  not  liable  for  the  acts  of 
each  other.^^  But  a  contract  by  such  joint  agent  for  through  trans- 
portation as  a  joint  enterprise  may  make  them  jointly  liable  for 


V.  Tisdale,  74  Tex.  8,  11  S.  W.  900,  4 
L.   R.   A.  545. 

^  See  cases  in  notes  64,  65,  69  (last). 
St.  Louis  &c.  R.  Co.  V.  Wallace,  90 
Ark.  138,  118  S.  W.  412,  22  L.  R.  A. 
(N.  S.)  379  and  note. 

®St.  Louis  &c.  R.  Co.  V.  Coolidge, 
72  Ark.  112,  83  S.  W.  2>?>2,,  67  L.  R.  A. 
555,  108  Am.  St.  21.  3  Am.  &  Eng. 
Ann.  Cas.  583 ;  Beard  v.  Illinois  Cen- 
tral R.  Co.,  79  Iowa  518,  44  N.  W. 
800,  7  L.  R.  A.  280,  18  Am.  St.  381 ; 
Colbath  V.  Bangor  &c.  R.  Co.,  105 
Elaine  379,  74  Atl.  918,  134  Am.  St. 
569;  Beede  v.  Wisconsin  &c.  R.  Co., 
90  Minn.  2>6,  95  N.  W.  454,  101  Am. 
St.  390;  Texas  &  P.  R.  Co.  v.  Adams, 
78  Tex  372,  14  S.  W.  666,  22  Am. 
St.  56  and  note.  Note  101  Am.  St. 
393.  4,  5. 

^  St.  Louis  &c.  R.  Co.  V.  Renfroe, 
82  Ark.  143,  100  S.  W.  889,  10  L.  R. 
A.  (N._  S.)  317n.  118  Am.  St.  58.  If 
the  suit  is  against  the  first  carrier 
and  it  is  not  liable  for  through  trans- 
portation, the  burden  is  on  the  plain- 
tifif  to  show  the  injury  occurred  on  its 
line;  if  against  the  last  carrier,  the 
burden  is  on  the  carrier  to  show  that 
the  injury  did  not  occur  on  its  line. 


St.  Louis  &c.  R.  Co.  V.  Pearce,  82  Ark. 
353,  101  S.  W.  760,  118  Am.  St.  75. 

*  Montgomery  &  W.  P.  R.  Co.  v. 
Moore,  51  Ala.  394;  Berry  Coal  & 
Coke  Co.  V.  Chicago  &c.  R.  Co., 
116  Mo.  App.  214,  92  S.  W.  714;  Knott 
V.  Raleigh  &c.  R.  Co.,  98  N.  Car.  72>, 
3  S.  E.  735,  2  Am.  St  Z27 ;  Chesa- 
peake &  Ohio  R.  Co.  V.  Stock,  104 
Va.  97,  51  S.  E.  161. 

•Wevland  v.  Elkins,  Holt  N.  P. 
227;  Cobb  v.  Abbot,  14  Pick.  (Mass.) 
289;  R.  E.  Funsten  Dried  Fruit  &c. 
Co.  V.  Toledo  &c.  R.  Co.  (Mo.  App.), 
143  S.  W.  839;  Rocky  Mt.  Mills  v. 
Wilmington  &c.  R.  Co.,  119  N.  Car. 
693,  25  S.  E.  854,  56  Am.  St.  682; 
Carter  v.  Peck,  4  Sneed  (Tenn.)  203. 

^"Hutchinson  Carriers  (3d  ed.), 
§  263. 

"Hutchinson  Carriers  (3d.  ed.), 
§  263 ;  Peterson  v  Chicago  &c.  R.  Co., 
80  Iowa  92,  45  N.  W.  573 ;  Champion 
V.  Bostwick,  18  Wend.  (N.  Y.)  175. 
31  Am.  Dec.  2i76;  Hart  v.  Rensselaer 
&c.  R.  Co.,  8  N.  Y.  (4  Seldon)  Z7,  59 
Am.  Dec.  447. 

"ElHott  R.  R.  (2d  ed.),  §  1447; 
Cobb  V.  Abbot,  14  Pick.  (Mass.)  289; 
Gulf  &c.  R.  Co.  V.  Baird,  75  Tex.  256, 
12  S.  W.  530. 


TERMINATION    OF    CARRIER    RELATION.  273 

the  defaults  of  each  other  in  carrying  out  the  contract.''  Car- 
riers may  be  liable  to  the  owner  of  goods  as  partners,  and  not 
be  Hable  as  such  between  themselves ;  so  in  certain  cases  a  carrier 
may  be  liable  to  the  consignee  for  loss  or  damage,  and  have  an 
action  over  against  the  connecting  carrier  whose  default,  in  fact, 
caused  the  injury,  as  a  remedy,  as,  for  instance,  when  the  first 
carrier  has  made  a  through  contract,  and  the  negligence  or  fault 
of  a  succeeding  carrier  has  caused  injury  to  the  goods/*  A  car- 
rier has  no  right  of  action  on  a  contract  which  an  initial  carrier 
has  made  with  a  shipper  whereby  it  agreed  to  deliver  the  goods  to 
the  other  carrier  for  further  transportation,  and  fails  to  make 
such  delivery,^^  The  preceding  carrier  has  usually  the  right  to 
contract  with  a  succeeding  one  as  the  owner  of  the  goods  would, 
and  stands  in  the  owner's  place,^*^  but  usage  or  private  ar- 
rangements between  them  may  greatly  change  their  relation  as 
between  themselves  and  may  put  the  first  carrier  in  a  situation 
much  different  from  that  in  which  the  shipper  would  stand, 
although  these  arrangements  or  usages  cannot  affect  the  shipper's 
rights." 

§  252.  Compensation  of  connecting  carriers. — Connect- 
ing carriers  which  receive  the  goods  in  good  faith  in  the  ordinaiy 
and  usual  course  of  business  between  connecting  carriers,  without 
notice  of  any  special  direction  by  the  consignor,  or  limitation 
upon  the  apparent  authority  of  the  carrier,  are  not  bound  by  any 
contract  between  the  consignor  and  the  first  carrier  for  reduced 
freight,  or  for  carriage  by  a  certain  route,  but  are  entitled  to  rea- 
sonable charges  for  their  services,  and  to  a  lien  for  their  own 

"  Cherry  v.  Chicago  &c.  R.  Co.,  191  Twiss,  35  Nebr.  267,  53  N.  W.  76,  37 

'Mo.  489,  90  S.  W.  381,  2  L.  R.  A.  (N.  Am.  St.  437. 

S.)    95n,   109  Am.    St.   830;   Hart  v.  "St.  Louis  &c.  R.  Co.  v.  Missouri 

Rensselaer  &c.  R.  Co.,  8  N.  Y.  37,  59  Pac.  R.  Co.,  35  Mo.  App.  272. 

Am.  Dec.  447;  Swift  v.  Pac.  Mail  &c.  "Squire  v.   New  York   Central   R. 

Co.,    106   N.   Y.  206,    12   N.   E.  283;  Co.,  98  Mass.  239,  93  Am.  Dec.  162: 

Ouimby  V.  Vanderbilt,  17  N.  Y.  306,  Rawson  v.  Holland,  59  N.  Y.  611,  17 

72  Am.  Dec.  469.  Am.  Rep.  394;  York  Co.  v.  Ill    Cen- 

"  Southern   R.    Co.   v.   Waters  Co.,  tral  R.  Co.,  3  Wall.    (U.  S.)    107,  18 

125  Ga.  520,  54  S.  E.  620;  Vermont  L.  ed,  170. 

&  Massachusetts  R.  Co.  v.  Fitchburg  "Wallace  v.  Rosenthal,  40  Ga.  41": 

R.  Co..  14  Allen  (Mass.)  462,  92  Am.  Condon  v.  Marquette  &c.  R.   Co..  55 

Dec.  785;  Missouri  Pacific  R.  Co.  v.  Mich.  218,  21  N.  W.  321,  54  Am.  Rep. 

367. 

Bailments — 18 


274  BAILMENTS. 

charges,  and  for  freight  lawfully  paid  by  them  to  prior  connect- 
ing carriers/*  If  the  initial  carrier  has  broken  its  contract  with 
the  shipper  in  sending  the  goods  by  a  certain  carrier,  or  in  sub- 
jecting him  to  increased  liability  for  freight  charges,  the  remedy 
is  an  action  against  such  initial  carrier,  and  the  connecting  carrier 
cannot  be  held,^^  unless  it  accepted  with  notice  of  the  contract,  or 
was  in  collusion  with  the  first  carrier  to  defraud  the  shipper,^" 
or  could  be  held  as  an  agent  or  partner  of  the  first  carrier."^  The 
intermediate  carrier  is  held  by  law  to  the  duty  not  only  to  carry 
the  goods  over  its  own  line,  but  also  to  use  reasonable  diligence 
to  secure  further  transportation  by  tendering  the  goods  to  the 
connecting  carrier,^^  and  if  the  latter  refuses  to  accept,  the  inter- 
mediate carrier  must  give  notice  to  the  owner,  and  then,  upon 
storing  the  goods,  he  becomes  liable  only  as  a  warehouseman.^^ 

§  253.  Delivery  to  connecting  carriers. — Which  one  of 
two  connecting  carriers  is  liable  for  loss  to  the  goods  often  de- 
pends upon  whether  there  has  been  a  delivery  by  one  to  the  other, 
that  is,  in  cases  where  there  is  no  joint  liability.  The  first  car- 
rier, upon  carrying  the  goods  to  the  point  of  connection,  must 
use  reasonable  diligence  to  deliver  the  goods  to  the  succeeding 

'"Elliott    R.    R.    (2d   ed.),    §    1451,  137,  51  Am.  Dec.  54;  Fitch  v.  New- 

and  cases  cited;  Goodin  v.  Southern  berry,    1    Doug.    (Mich.)    1,   40   Am. 

R.  Co.,  6  L.  R.  A.   (N.  S.)   1054  and  Dec.  33. 

note,  125  Ga.  630,  54  S.  E.  720,  5  Am.        ^  Evansville  &c.  R.  Co.  v.  Marsh,  57 

&  Eng.  Ann.  Cas.  73 ;  Potts  v.  New  Ind.  505 ;  Knight  v.  Providence  &c.  R. 

York  &c.   R.   Co.,   131   Mass.  455,  41  Co.,  13  R.  I.  572,  43  Am.  Rep.  46,  9 

Am.  Rep.  247 ;  Crossan  v.  New  York  Am.    &    Eng.    R.    Cas.    90 ;    Harp    v. 

&c.  R.  Co.,  149  Mass.   196,  21   N.  E.  Grand   Era,    1   Woods    (U.   S.)    184, 

367,  3  L.  R.  A.  766  and  note,  14  Am.  Fed.  Cas.  No.  6084. 
St.  408;  Wells  v.  Thomas,  27  Mo.  17,        ''Elliott   R.    R.    (2d   ed.),    §    1449; 

72  Am.  Dec.  228  and  note;   Gulf  C.  Alabama  G.  S.  R.  Co.  v.  Thomas,  89 

&    S.    F.    R.    Co.   V.  Dwyer,  75   Tex.  Ala.  294,  7  So.  762,  18  Am.  St.   119; 

572,  12  S.  W.   1001,  7  L.  R.  A.  478,  Irish  v.  Milwaukee  &  St.  P.  R.  Co., 

16  Am.  St.  926.  19  Minn.  376,  (Gil  323)   18  Am.  Rep. 

"St.  Louis,  I.   M    &   S.   R.   Co.  V.  340;  Wehmann  v.  Minneapolis  St.  P. 

Lear,  54  Ark.  399,  IS  S.  W.  1030,  55  &  S.  S.  M.  R.   Co.,  58  Minn.  22,  59 

Am.  &  Eng.  R.  Cas.  414;  Georgia  R.  N.  W.  546. 

&  Banking  Co.  v.  Murrah,  85  Ga.  343,         ^  Buston    v.    Pennsylvania    R.    Co., 

11  S.  E.  779;  Mt.  Pleasant  Mfg.  Co.  119  Fed.  808,  56  C.  C.  A.  320;  Fisher 

V    Cape  Fear  &c.  R.  Co.,  106  N.  Car.  v.  Boston  &  M.  R.  Co.,  99  Maine  338, 

207,   10   S.   E.   1046,  42  Am.   &   Eng.  59  Atl.  532,  68  L.  R.  A.  390,  105  Am. 

R    Cas    498  St.  283:   Colbath  v.  Bangor  &  A.  R. 

■'"Denver  &  Rio  Grande  R.   Co.  v.  Co.,  105  Maine  379,  74  Atl.  918.  134 

Hill.  13  Colo.  35,  21  Pac.  914,  4  L.  R.  Am.  St.  569;  Andon  v.  Marquette,  H. 

A    376,  40  Am.  &  Eng.  R.  Cas.  145 ;  &  O.  R.  Co.,  55  Mich.  218,  21  N.  W. 

Robinson  v.  Baker,  5  Cush.  (Mass.)  321,  54  Am.  Rep.  367. 


TERMINATION    OF    CARRIER    RELATION.  275 

carrier,  must  at  least  make  a  tender  of  delivery,  and  be  in  readi- 
ness to  deliver  in  accordance  with  his  tender.^*  It  is  not  enough, 
it  is  held,  that  the  second  carrier  is  simply  informed  of  the  goods, 
and,  it  seems,  that  he  will  refuse  to  accept  them,  but  actual  tender 
must  be  made.*°  The  question  of  what  is  reasonable  diligence 
depends  upon  the  circumstances.-^  The  consignor  of  goods 
shipped  by  a  route  requiring  transportation  over  two  connecting 
lines  may  decline  to  ship  farther  when  the  goods  are  delivered  at 
the  connecting  point,  and,  upon  payment  of  the  first  carrier's 
charge,  may  demand  redelivery.^^  If  a  particular  carrier  has  been 
designated  to  whom  the  goods  must  be  delivered  as  succeeding 
carrier,  the  preceding  carrier  is  liable  as  for  conversion  if  he  fails 
to  deliver,  unless  the  second  carrier  fails  to  accept,*^  and  if  he 
delivers  to  another  carrier  than  the  one  selected,  this  act  makes 
the  first  carrier  an  insurer  of  the  safe  arrival  of  the  goods  at 
their  destination.^*  If  there  is  only  one  connecting  carrier, 
the  presumption  is  that  the  goods  are  to  be  delivered  to  him ; 
if  there  are  more  than  one,  and  no  one  has  been  specified, 
the  goods  should  be  delivered  to  be  forwarded  in  the  usual 
way.^"  If  the  selected  carrier  cannot  take  the  goods,  in  the 
case  of  perishable  goods,  the  first  carrier  must  usually  send  them 
forward  by  the  best  means  possible.^^  But  if  it  is  possible  to  com- 
municate with  the  shipper  for  further  instructions,  such  is  the 
carrier's  duty.^"  It  is  the  first  carrier's  duty  to  transmit  to  the 
succeeding  carrier  the  instructions  as  to  the  destination  and  final 
disposition  and  delivery  of  the  goods  and  if  injury  results  to  tlie 

"Grand    Rapids    &    T.    R.    Co.    v.  ^ Brown    v.    Pennsyh-ania    Co.,    63 
Diether,  10  Ind.  App.  206,  37  N.  E.  39,  Minn.  546,  65  N.  W.  961. 
1069,  53  Am.  St.  385 ;  Regan  v.  Grand  ""  Chicago,  I  &  L.  R.  Co.  v.  Wood- 
Trunk  R.  Co.,  61  N.  H.  579;  Whit-  ward.  164  Tnd.  360,  72  N.  E.  558,  IZ 
worth  V.  Erie  R.  Co.,  87  N.  Y.  413.  N.    E.   810;    Rawson   v.    Holland,   59 

""  Grand  Rapids  &  I.  R.  Co.  v.  Die-  N.  Y.  611,   17  Am.  Rep.  394;  Texas 

ther.   10  Ind.  App.  206,  Zl  N.  E.  39,  &  P.  R.   Co.  v.  Callender,   183  \\   S. 

1069,  53  Am.  St.  385.  632,  46  L.  ed.  362,  22  Sup.  Ct.  257. 

"'Rock  Island  &   Peoria  R.  Co.  v.  '^ Regan  v.  Grank  Trunk  R.  Co.,  61 

Potter,  36  111.  App.  590.  N.  II.  579. 

"Wente  v.  Chicago  &c.  R.  Co.,  79  ==  Fisher  v.   Boston   &c.   R.    Co..  99 

Nebr.  179.  115  N.  W.  859,  15  L.  R.  A.  ^Taine  338.  59  Atl.  532.  68  L.  R.  A. 

(N.  S.)  756  and  note.  300.  105  Am.  St.  283;  Proctor  v.  East- 

"^  Georgia  Pac.  R.  Co.  v.  Cole  &  Co.,  ern   R.   Co..    105  Mass.   512;    Shea  v. 

68  Ga.  623;  Rawson  V.  Holland,  59  N.  Chicago.    R.    T.    &    P.    Railway,    66 

Y.  611,  17  Am.  Rep.  394.  JMinn.  102,  68  N.  W.  608. 


276  BAILMENTS. 

goods  from  his  failure  so  to  do,  he  is  hable.^^  .When  the  goods 
have  been  deHvered  to  the  second  carrier,  habihty  terminates  on 
the  part  of  the  first  unless  the  contract  is  for  through  carriage, 
or  other  circumstances  import  liability.^*  If  the  second  carrier 
refuses  to  carry,  and  the  preceding  carrier  has  used  due  dili- 
gence, has  stored  the  goods  and  communicated  with  the  owner, 
his  liability  terminates.^^  As  long  as  the  first  carrier  allows  the 
goods  to  remain  upon  his  conveyances,  awaiting  the  succeeding 
carrier,  his  liability  is  that  of  a  common  carrier,  until,  by  some 
clear  and  unmistakable  act,  he  changes  his  office  from  carrier  to 
custodian.^^  Merely  unloading  the  goods  is  not  a  delivery  to  the 
succeeding  carrier.^^  Usage  may  control  the  manner  of  making 
a  delivery  to  the  succeeding  carrier.^^  And  between  carriers, 
usage  or  custom  of 'the  trade,  or  an  established  course  of  dealing 
may  give  rise  to  what  is  called  constructive  delivery,  with  no 
actual  transfer  of  possession,  but  the  shipper  may  look  to  the  one 
in  whose  actual  possession  they  were  at  the  time  of  the  loss,^^ 
and  also  to  the  one  to  whom  they  have  been  constructively  deliv- 
ered.*" Property  which  has  been  stored  in  a  warehouse  by  one 
connecting  carrier  while  waiting  a  reasonable  time  for  another 
carrier  to  take  it  is  held  under  the  carrier's  liability,  the  goods 
being  considered  as  in  transportation,  or  awaiting  transporta- 

^  Colfax    Mountain    Fruit    Co.    v.  (Minn.)  323,  18  Am.  Rep.  340;  Texas 

Southern   Pac.   R.   Co..   118  Cal.  648,  &c.  R.  Co.  v.  Reiss,  183  U.  S.  621,  46 

46  Pac.  668,  50  Pac.  775,  40  L.  R.  A.  L.  ed.  358,  22  Sup.  Ct.  253 ;  Michigan 

78;    North   v.   Merchants'    &    Miners'  Cent.  R.  Co.  v.  Mineral  Springs  Co., 

Transp.  Co.,  146  Mass.  315,  15  N.  E.  16  Wall.  (U.  S.)  318,  21  L.  ed.  297. 
779;   Richer  v.    Fargo,  11   App.   Div.        ^*  Gibson  v.   Culver,   17  Wend.    (N. 

(N.  Y.)  550,  78  N.  Y.  S.  1007.  Y.)  305;  Rawson  v.  Holland,  59  N.  Y. 

**See  cases  cited  in  note  63  (last).  611,  17  Am.  Rep.  394;  Van  Santvoord 

'"Fisher  v.   Boston  &c.  R.   Co.,  99  v.    St.    John,    6    Hill    (N.    Y.)    157; 

Maine  338,  59  Atl.  532,  68  L.  R.  A.  Texas  &c.  R.  Co.  v.  Hassell,  23  Tex. 

390,  105  Am.  St.  283;  Condon  v.  Mar-  Civ.  App.  681,  58  S.  W.  54. 
quette,  H.  &c.  R.  Co.,  55  Mich.  218,        '*  Louisville  &  N.  R.  Co.  v.  Farmers' 

21  N.  W.  321,  54  Am.  Rep.  367;  Le-  &  Drovers'  &c.  Firm,  107  Ky.  53,  53 

sinskv  v.  Great  Western  Despatch,  10  S.  W.  972;   Condon  v.  Marquette  R. 

]\Io.  App.  134;  Regan  v.  Grand  Trunk  Co.,  55  Mich.  218,  21  N.  W.  321.  54 

R    Co..  61  N.  H.  579;  Whitworth  v.  Am.    Rep.    ZQ ',    McDonald    v.    The 

Erie  R.  Co.,  87  N.  Y.  413.  Western  R.  Corp.,  34  N.  Y.  497 ;  Con- 

"Bennitt  v.  Missouri  Pac.  R.  Co.,  key  v.  Milwaukee  &  St.  Paul  R.  Co., 

46  Mo.  App.  656.  31  Wis.  619. 

*'  Gass  V.  New  York  &c.  R.  Co..  99       *»    ^tna  Ins.  Co.  v.  Wheeler,  49  N. 

Mass.  220.  96  Am.  Dec.  742;  Irish  v.  Y.  616. 
Milwaukee  &  St.  Paul  R.  Co.,  19  Gil. 


TERMINATION    OF    CARRIER    RELATION.  277 

tion.'*^  Each  carrier  who  takes  goods,  whether  from  the  original 
shipper^  or  from  the  preceding  carrier,  wliich  are  to  be  carried 
beyond  its  destination,  becomes  as  to  the  forwarding  of  the  goods 
the  owner's  agent.'*^ 

*  McDonald  v.   Western  R.   Corp.,  Chesapeake  &  Ohio  Co.,  47  W.  Va. 

34  N.  Y.  497 ;  Michigan  Cent.  R.  Co.  656,  35  S.  F.  908,  81  Am.  St.  816. 

V.  Mineral  Springs  Mfg.  Co.,  16  Wall.  *^See    cases    cited    under    note    16, 

(U.  S.)  318,  21  L.  ed.  297;  Lewis  v.  §  251. 


CHAPTER  XV. 

CARRIERS  OF  LIVE  STOCK. 

§254.  Carriers  of  live  stock  in  gen-  §260.  Liability  for  loss  or  delay, 

eral.  261.  Special   contract  and   limita- 

255.  Duty  to   carry.  tion  of  liability. 

256.  Place  of  reception.  262.  Statutory  regulation. 

257.  Carrier's   duty  as   to  accom-         263.  Termination  of  relation  and 

modations.  delivery. 

258.  Loading  and  unloading.  264.  Delivery  to   connecting  car- 

259.  Care  of  the  stock  in  transit.  rier. 

§  254.  Carriers  of  live  stock  in  general. — The  general 
rules  of  law  applicable  to  the  carrier  of  goods  are  likewise  appli- 
cable to  the  carrier  of  live  stock,  subject  to  certain  modifications 
on  account  of  the  peculiar  nature  of  the  freight.  As  a  rule,  live 
stock  is  carried  on  a  special  contract,  and  not  under  the  general 
duty  as  carrier.  The  endeavor  in  this  chapter  will  be  to  set  out  the 
particulars,  not  already  touched  upon,  in  which  the  carrier  of  live 
stock  differs  from  the  carrier  of  goods.  It  has  been  set  forth 
among  the  exceptions  to  the  common  carrier's  liability  im- 
plied by  law  as  an  insurer  that  he  cannot  be  held  for  losses  re- 
sulting from  the  inherent  nature  and  propensities  of  animals. 
The  general  rule  held  in  practically  all  the  states  is  that  the  com- 
mon carrier  of  goods  who  carries  live  stock  is  as  to  the  latter 
also  a  common  carrier,  except  that  he  is  not  an  insurer  for  losses 
resulting  from  the  inherent  nature  and  propensities  of  animals.^ 

'Elliott    R.    R.    (2d    ed.),    §§    1545,  note  130  Am.   St.  432,   for  a  general 

1546;   Hutchinson  Carriers   (3d  ed.),  collection  of  authorities  on  liability  of 

§   339;    Summerlin  v.   Seaboard   Air-  a  carrier   for  loss  or   injury  to  live 

line  R.  Co.,  56  Fla.  687,  47  So.  557,  stock;   Clive  v.  Chicago,  B.  &  Q.  R. 

19  L.  R.  A.  (N.  S.)  191,  131  Am.  St.  Co.,  11  Nebr.  166,  108  N.  W.  982,  124 

164;   Central  of  Ga.  R.  Co.  v.   Hall,  Am.  St.  837,  15  Am.  &  Eng.  Ann.  Cas. 

124  Ga.  322,  52  S.  E.  697,  110  Am.  St.  ZZ  and  note;  John  Schroeder  Lumber 

170;  Kansas  Pac.  R.  Co.  v.  Nichols,  9  Co.  v.  Chicago  &  N.  W.  R.  Co.,  135 

Kans.  235,  12  Am.  Rep.  494;  Stiles  v.  Wis.  575,  116  N.  W.  179,  128  Am.  St. 

Louisville  &c.  R.  Co ,  129  Kv.  175,  110  1039. 
S.  W.  820,  130  Am.  St.  429,  and  see 

278 


CARRIERS    OF    LIVE    STOCK.  279 

In  Michigan  it  is  held  that  a  carrier  of  hve  stock  is  not  a  com- 
mon carrier.^ 

§  255.  Duty  to  carry. — All  carriers  who  hold  themselves 
out  as  carriers  of  live  stock  and  make  such  their  business  are 
ordinarily  under  a  duty  to  accept  such  stock  for  carriage  within 
reasonable  regulations,  and  an  action  will  lie  for  refusal  without 
good  excuse.^  The  carriage  of  live  stock  is  practically  confined 
to  railroads  on  land  and  to  steamboats  and  large  sea-going  vessels 
on  water.  There  may  be  good  reasons  for  refusal  to  carry  live 
stock.  Among  them  are  the  following:  a  railroad  may  refuse 
to  take  cattle  to  be  transported  into  a  county  in  which  a  license 
is  required  by  law  as  a  prerequisite,  and  the  owner  has  not  pro- 
cured such  license,*  and  may  be  justified  in  refusing  to  carry 
cattle  so  diseased  as  to  injure  others,  or  cattle  the  transportation 
of  which  is  forbidden  by  a  valid  and  constitutional  statute,' 
though  it  is  held  no  defense  that  transportation  is  forbidden  by 
an  unconstitutional  statute.® 

§  256.  Place  of  reception. — The  carrier  must  make  such 
provision  at  the  place  of  loading  as  will  enable  it  to  properly  re- 
ceive and  load  the  stock,'^  that  is,  he  must  furnish  pens  sufficient 
in  number  and  size  to  care  for  the  ordinary  volume  of  such  busi- 
ness or  such  volume  as  is  reasonably  to  be  anticipated  f  and  these 
pens  should  be  safe  and  in  a  sanitary  condition."  So  a  pen  has 
been  held  unsafe  for  hogs  which  was  built  on  a  south  slope,  with 
no  shade,  shelter,  or  water,  and  an  embankment  on  one  side 

Heller  v.  Chicago  &c.  R.  Co.,  109  343  and  note ;   Hannibal  &'C.  R.   Co. 

Mich    53,  66  N.  W.  667,  63  Am.  St.  v^usen,  95  U.  S.  465,  24  L.  ed.  527. 

541  and  note.  x*  Chicago  &  Alton  R.  Co.  v.  Erick- 

^Ballentine   v.    North   Missouri    R.  son,  91  111.  613,  33  Am.  Rep.  70. 

Co.,   40  Mo.   491,  93   Am.   Dec.   315;  'Covington     Stock-Yards     Co.     v. 

Missouri    Pac.   R.    Co.   v.    Fagan,   72  Keith,  139  U.   S.   128.  35   L.   ed.  73; 

Tex.  127.  9  S.  W.  749,  2  L.  R.  A.  75,  11  Sup.  Ct.  461 ;  note,  130  Am.  St.  448. 

13  Am.  St.  776;  see  note  63  Am.  St.  *  Casey  v.   St.   Louis    Southwestern 

549,   550  et  seq. ;   note  67  Am.  Dec.  R.  Co.,  37  Tex.  Civ.  App.  49,  83  S.  W. 

213.  20. 

*  Williams  v.  Great  Western  R.  Co.,  'St.  Louis  &  S.  F.  R.  Co.  v.  Beets, 

52  L.  T.  250,  49  J.  P.  439.  75  Kans.  295,  89  Pac.  683.  10  L.  R.  A. 

Furlev  v.  Chicago  &c.  R.  Co.,  90  CN.  S.)  571  and  note;  Norfolk  &  V/. 

Towa  146,  57  N.  W.  719.  23  L.  R.  A.  R.  Co.  v.  Harman,  91  Va.  601.  22  S. 

73 ;  Grimes  v.  Eddy,  126  Mo.  168.  28  E.  490.  44  L.  R.   A.  289,  50  Am.  St. 

S.  W.  756.  26  L.  R.  A.  638.  and  note,  855.   These  pens  should  be  reasonably 

47  Am.  St.  653.  61  Am.  &  Eng.  R.  Cas.  safe  for  caretakers  of  the  stock.   At- 


280  BAILMENTS. 

which  cut  off  the  breeze/"  and  where  hogs  were  killed  by  lime 
wash,  though  left  in  the  pens  for  disinfecting  purposes  by  official 
order,  the  carrier  was  liable." 

§  257.  Carrier's  duty  as  to  accommodations. — The  car- 
rier must  furnish  cars  reasonably  safe  and  suitable  for  the  trans- 
portation of  stock  of  the  kind  which  it  undertakes  to  carry," 
some  authorities  holding  him  liable  to  furnish  cars  absolutely 
safe.^^  At  least,  the  quarters  furnished  must  be  strong  enough 
to  transport  animals  of  ordinary  unruliness,  but  not  those  of  ex- 
traordinary viciousness  of  their  kind,  tmless  there  is  knowledge 
of  such  fact.^*  A  sufficient  amount  of  room  for  the  number  of 
animals  should  be  given/^  and  where  cattle  are  carried  in  a  ves- 
sel, it  is  implied  in  the  contract  that  there  shall  be  sufficient  ven- 
tilation in  die  compartments  allotted  them.^^  The  carrier  is  liable 
for  injuries  caused  by  defective  cars,  stock  pens,  or  appliances." 

§  258.     Loading  and  unloading. — What  has  been  said  in 

reference  to  the  providing  of  proper  pens  for  loading  applies 
equally  to  the  same  facilities  for  unloading.^^  The  duty  to  load 
and  unload  is  primarily  that  of  the  carrier,  but  may  become  that 
of  the  shipper  by  special  contract."  Where  the  shipper  has  as- 
sumed the  duty,  the  carrier  must  furnish  him  proper  facilities 
and  opportunities  to  load  and  unload.-*^    If  the  carrier  loads  and 

chison,  T.  &  S.  F.  R.  Co.  v.  Allen,  75  588,  18  S.  E.  88;  Wilson  v.  Hamilton, 

Kans.   190,  88  Pac.  966,  10  L.  R.  A  4  Ohio  St.  722. 

(N.  S.)  576n.  ^=  Kinnick  v.  Chicago  &c.  R.  Co.,  69 

'» Lackland  v.  Chicago  &c.  R.   Co.,  Iowa  665,  29  N.  W.  112. 

101  Mo.  App.  420,  74  S.  W.  505.  "  The  Alvah,  11  Fed.  315,  23  C.  C. 

"  Shaw  V.  Great  Southern  R.  Co.,  8  A.  181. 

L.  R.  Ir.  10.  "Elliott  R.  R.    (2d  ed.),   §   1551; 

"Betts  V.   Chicago,   R.  I.   &  P.  R.  Chesapeake   &   O.    R.   Co.   v.    Amer- 

Co.,  92  Iowa  343,  60  N.  W.  621,  26  L.  ican   Exch.  Bank,  92  Va.  495,  23   S. 

R.  A.  248.  54  Am.  St.  558;  Morrison  v.  E.  935,  44  L.   R.  A.  449.    See  cases 

Philips  &c.  Construction  Co.,  44  Wis.  cited  ante,  notes  9,  12,  13,  14.    Note 

405,  28  Am.  Rep  599;  John  Schroeder  130  Am.  St.  446. 

Lumber  Co.  v.  Chicago  &  N.  W.  R.  "  See  authorities  cited  in  preceding 

Co.,  135  Wis.  575,  116  N.  W.  179,  128  sections. 

Am.  St.  1039.  "  Southern  &c.  R.  Co.  v.  Henlein,  52 

"Smith  V.  New  Haven  &c.  R.  Co.,  Ala.  606,   23   Am.   Rep.   578;    Squire 

12  Allen   (Mass.)   531,  90  Am.  Dec.  v.   New  York  &c.  R.   Co.,  98  Mass. 

166.  239,  93  Am.  Dec.   162;  Shureman  v. 

"Betts  V.   Chicago,  R.  I.  &  P.  R.  Chicago,   Burlington  &c.   R.    Co.,  88 

Co.,  92  Iowa  343,  60  N.  W.  623,  26  L.  Mo.  App.  183. 

R.  A.  248,  54  Am.  St.  558;  Selby  v.  ^Abrams  v.  Milwaukee  &c.  R.  Co., 

Wilmington  &  W.  R.  Co.,  113  N.  Car.  87  Wis.  485,  58  N.  W.  780,  41  Am. 


CARRIERS   OF   LIVE    STOCK. 


281 


unloads,  he  is  liable  for  negligence,"^  and  if  either  shipper  or  car- 
rier assumes  to  load  or  unload  when  such  is  the  duty  of  the  other, 
he  cannot  hold  the  other  for  the  result  of  his  negligence  in  so 
doing.  ^^ 

§  259.  Care  of  the  stock  in  transit. — Where  tlie  shipper 
selects  cars  with  knowledge  of  a  defect,  the  general  rule  is  that 
the  carrier  is  not  liable  for  injuries  caused  thereby,^*  especially 
where  such  is  provided  in  the  contract,"*  but  there  are  many  cases 
to  the  contrary."^  The  carrier  must  give  the  stock  air,  water, 
food  as  required,  and  rest  if  necessary,  and  provide  suitable  places 
for  feeding  and  watering.^^  The  carrier  is  liable  for  injury 
caused  by  his  negligence  in  regard  to  the  care  of  the  stock.^^ 
Where  hogs  in  transportation  are  crowded,  and  in  danger  of 
becoming  overheated,  it  is  the  duty  of  the  carrier  to  throw  water 


St.  55;  Norfolk  &c.  R.  Co.  v.  Suther- 
land, 89  Va.  703,  17  S.  E.  127;  Rey- 
nolds V.  Great  Northern  R.  Co.,  40 
Wash.  163,  82  Pac.  161,  111  Am.  St. 
883.  But  where  the  shipper  has  agreed 
to  load  and  unload,  the  carrier  must 
show  that  injury  in  unloading  was  not 
caused  by  its  negligence.  Gilliland  v. 
Southern  R.  Co.,  85  S.  Car.  26,  67  S. 
E.  20,  137  Am.  St.  861. 
^  Mexican   Nat.   R.   Co.   v.   Savage 

''(Tex.  Civ.  App.),  41  S.  W.  663. 

^Burgher  v.  Chicago,  R.  I.  &c.  R. 
Co.,  105  Iowa  335,  75  N.  W.  192 ;  Nor- 

"mile  V.  Oregon  Nav.  Co.,  41  Ore.  177, 
69  Pac.  928;  San  Antonio  &  A.  P. 
R.  Co.  V.  Dolan  (Tex.  Civ.  App.),  85 

J.  W.  302. 

'^As  where  the  shipper  of  horses 
selects  an  inadequately  ventilated  car, 
with  knowledge.  John  Schroeder 
Lumber  Co.  v.  Chicago  &c.  R.  Co.,  135 
Wis.  575,  116  N.  W.  179,  128  Am. 
St.  1039.  See  also,  Coupland  v.  Hous- 
atonic  &c.  R.  Co.,  61  Conn.  531,  23 
Atl.  870,  15  L.  R.  A.  534;  Harris  v. 
Northern  Ind.  R.  Co.,  20  N.  Y.  232. 
"  "Squire  v.  New  York  Cent.  R.  Co., 
98  Mass.  239,  93  Am.  Dec.  162; 
Kansas  City,  M.  &  B.  R.  Co.  v.  Hol- 
land, 68  Miss.  351,  8  So.  516;  Wilson 
V.  New  York  Central  R.  Co.,  27  Hun 
(N.  Y.)  149. 

=*  Western   R.    Co.   v.   Harwell,   91 
Ala.  340,  8  So.  649;  Rhodes  v.  Louis- 


ville &c.  R.  Co.,  9  Bush  (Ky.)  688; 
Welsh  V.  Pittsburg,  Ft.  W.  &  C.  R. 
Co.,  10  Ohio  St.  65,  75  Am.  Dec.  490 ; 
Ogdensburg  &  Lake  Champlain  R. 
Co.  V.  Pratt,  22  Wall.  (U.  S.)  123, 
22  L.  ed.  827.  The  stipulation  in  the 
shipping  contract  that  the  shipper  ac- 
cepts the  cars  and  acknowledges  them 
sufficient  and  suitable  in  every  respect 
does  not  relieve  the  carrier  from  neg- 
ligence in  supplying  unsuitable  cars. 
Nevins  v.  Chicago,  St.  P.  M.  &  O.  R. 
Co.,  124  Wis.  313,  102  N.  W.  489,  109 
Am.  St.  935. 

""  Illinois  Cent.  R.  Co.  v.  Adams,  42 
111.  474,  92  Am.  Dec.  85 ;  Chicago.  B. 
&  Q.  R.  Co.  V.  Williams,  61  Nebr.  608, 
85  N.  W.  832,  55  L.  R.  A.  289;  Stiles 
V.  Louisville  &  N.  R.  Co.,  129  Ky.  175, 
110  S.  W.  820,  18  L.  R.  A.  (N.  S.) 
86n,  130  Am.  St.  429n;  Gulf  C.  &  S. 
F.  R.  Co.  V.  Wilhelm,  4  Willson  Civ. 
Cas.  (Tex.  Civ.  App.),  §  485.  16  S. 
W.  109;  Bosley  v.  Baltimore  &  O.  R. 
Co.,  54  W.  Va.  563,  46  S.  E.  613,  619. 
66  L.  R.  A.  871;  note  130  Am.  St. 
452.  The  carrier  is  liable  for  loss 
caused  by  his  failure  to  unload  hogs 
and  give  them  rest  and  time  to  cool 
off,  when  necessiry.  St.  Louis  S.  W. 
R.  Co.  V.  Mitchell" (Ark.).  142  S.  W. 
168.  37  L.  R.  A.  (N.  S.)  547. 

"Elliott  R.  R.  (2d  ed.).  §  1548; 
Indianapolis  P.  &  C.  R.  Co.  v.  Allen, 
31  Ind.  394;  Moulton  v.  St.  Paul  &c. 


282  "  BAILMENTS. 

over  them  in  order  to  prevent  it.-^  Where  animals  pile  up,  and 
might  smother  those  underneath,  the  carrier  is  under  a  duty  to 
give  suitable  attention  to  prevent  this,  either  by  unloading,  or 
otherwise,  and  even  if  the  shipper  has  overcrowded  the  cars,  if 
the  carrier  has  accepted  the  animals  with  knowledge  of  such  fact, 
he  must  take  care  to  prevent  smothering  and  suffocation  because 
of  such  condition.^^  But  where  the  shipper  overcrowded  crates 
of  fowls,  and  the  cars  were  in  proper  condition,  it  was  held  that 
the  loss  by  suffocation  was  caused  by  the  negligence  of  the  shipper 
in  packing.^"  .Where  a  hog  was  killed  by  being  placed  in  a  steam- 
heated  car,  and  the  carrier  could  by  ordinary  diligence  have  fore- 
seen such  result,  he  was  held  liable  f^  likewise  where  bedding  was 
set  fire  negligently  and  the  stock  injured.^^  If  the  carrier  has  made 
provisions  to  protect  the  stock,  sufficient  under  ordinary  condi- 
tions, he  is  not  liable  for  loss  caused  by  unusual  climatic  condi- 
tions, as  where  animals  contract  pneumonia  from  an  unusual  drop 
in  temperature,^^  and  need  use  only  ordinary  care  to  protect  them 
from  freezing,^*  but  is  liable  where  he  negligently  allows  animals 
to  perish  from  cold.^^  The  carrier  is  liable  if  he  knowingly  ex- 
poses the  animals  to  disease  in  the  course  of  transportation,  as,  for 
instance,  where  hogs  shipped  to  a  stock  show  contracted  cholera 
while  being  transported  over  a  railroad,  where  there  was  no  ne- 
cessity for  exposing  them  to  infection,^^  or  if  he  unloads  them  in 

R.  Co.,  31  Minn.  85,  16  N.  W.  497,  47  carrier  accepted  a  crate   containing 

Am.  Rep.  781 ;  see  cases  cited  in  notes  dogs  insecurely  crated,  it  was  liable 

following.  for  the  loss  of  one  therefrom.     At- 

^  Illinois  Cent.  R.  Co.  v.  Adams,  42  lantic  Coast  &c.  R.  Co.  v.  Rice,  169 

111.  474,  92  Am.  Dec.  85 ;  Toledo,  N.  Ala.  265,  52  So.  918,  Ann.  Cas.  1912B. 

&  W.  R.  Co.  V.  Thompson,  71  111.  434;  389. 

Wallace  v.  Lake  Shore  &c.  R.  Co.,  ^^  United  States  Exp.  Co.  v.  Burke, 
133  Mich.  633,  95  N.  W.  750.  This  94  111.  App.  29;  Burke  v.  United 
is  not  the  duty  of  the  shipper  who  ac-  States  Exp,  Co.,  87  111.  App.  505. 
companies  the  stock  to  feed,  water,  "^  Powell  v.  Pennsylvania  R.  Co.,  32 
and  care  for  them,  but  of  the  carrier  Pa.  St.  414,  75  Am.  Dec.  564. 
alone.  The  shipper's  duty  is  performed  ^'Louisville  &  N.  R.  Co.  v.  War- 
when  he  tells  the  carrier's  agents  the  field,  30  Ky.  L.  352,  98  S.  W.  313; 
hogs  need  sprinkling,  and  the  carrier  Cohn  v.  Piatt.  48  Misc.  (N.  Y.)  378, 
cannot  contract  against  negligence  in  95  N.  Y.  S.  534. 

performing  this   dutv.    Peck  v.   Chi-  ^  Colsch  v.  Chicago,  M.  &  St.  P.  R. 

cago,  Great  Western  R.  Co..  138  Iowa  Co.,  149  Iowa  176,  127  N.  W.  198,  34 

187,  115  N.  W.  1113,  16  L.  R.  A.  (N.  L.   R.   A.    (N.   S.)    1013,  Ann.   Cas. 

S.)  883n.  128  Am.  St.  185.  1912C,  915  and  note. 

"^  Kinnick  v.  Chicago  &c.  R.  Co.,  69  ''  Feinberg  v.  Delaware  &c.  R.  Co., 

Iowa  665,  29  N.  W.  772.  52  N.  J.  L.  451,  20  Atl.  33. 

'"Cohn  V.  Piatt,  48  Misc.    (N.  Y.)  "^Council  v.   St.  Louis  &   S.  F.  R. 

378,  95  N.  Y.  S.  534.    But  where  a  Co.,  123  Mo.  App.  432,  100  S.  W.  57. 


CARRIERS    OF    LIVE    STOCK.  283 

cattle  pens  where  they  contract  Texas  fever,^^  or  infects  them 
from  cars^*  or  from  his  yards.^^  If  the  carrier  knows  that  ani- 
mals are  pregnant,  or  sick,  or  from  facts  in  his  possession  a  rea- 
sonable man  would  so  conclude,  he  must  give  to  such  animals  the 
treatment  which  their  condition  demands.*"  If  he  does  not  know 
the  condition,  he  is  liable  for  no  more  than  ordinaiy  care."  It 
was  held  that  a  carrier  must  set  aside  a  car  of  frightened  ani- 
mals, if  within  reason,  where  the  owners  make  the  request,  and 
the  agents  of  the  carrier  know  that  the  animals  are  in  danger  of 
being  killed  or  hurt  by  being  carried  farther."  The  carrier  may 
so  make  up  the  train  that  he  is  liable  for  negligence  in  transport- 
ing live  stock,  as  where  a  log  on  a  flat  car  projected  over,  came 
in  contact  with  a  car  in  which  horses  were,  and  caused  damage." 
It  is  the  carrier's  duty  to  provide  suitable  places  for  feeding  and 
watering  the  animals  transported. 

§260.  Liability  for  loss  or  delay. — Summing  up,  the  car- 
rier is  liable  for  loss  caused  by  failure  to  observe  the  duties  above 
mentioned,  but  is  not  liable  for  loss  caused  by  inherent  nature  of 
the  animals,  or  by  the  fault  of  the  shipper,**  or  by  an  agency 
excepted  by  special  contract.*^     He  is  liable  for  loss  occasioned 

*^  Baltimore  &  O.  R.  Co.  v.  Dever,  A.    (N.    S.)    639  and   note  reviewing 

112  Md.  296,  75  Atl.  352,  21   Am.  &  authorities  as  to  care  to  be  taken  by 

Eng.  Ann.  Cas.   169.  carrier    in    case    of    loss    threatened 

"^Illinois    Cent.    R.    Co.    v.    Harris,  to  live  stock. 

184  111.  57,  56  N.  E.  316,  48  L.  R.  A.  '^  Missouri    Pac.    R.    Co.   v.   Fagan 

175;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  (Tex.  Civ.  App.),  27  S.  W.  887. 

Henderson,  57  Ark.  402,  21  S.  W.  878.'  *"  Coupland      v.       Housatonic       R. 

'*Dorr  Cattle  Co.  v.  Chicago  &c.  R.  Co.,  61   Conn.  531,  23  Atl.  870,  15  L. 

Co.,  128  Iowa  359,  103  N.  W.  1003.  R.  A.  534 ;  Johnson  v.  Alabama  &  V. 

^'McCune  v.  Burlington  &c.  R.  Co.,  R.  Co.,  69  Miss.   191,   11   So.   104,  30 

52  Iowa  600,  3  N.  W.  615;  Estill  v.  Aid.  St.  534. 

New  York  &c.  R.   Co.,  41   Fed.  849,  v/"  Galveston  H.  &  S.  A.   R.  Co.  v. 

mod.  147  U.  S.  591,  37  L.  ed.  292,  13  Herring  (Tex.  Civ.  App.),  36  S.  W. 

Sup.    Ct.   445.     But   a    railroad   com-  129. 

pany   which   has    taken    a   horse    for  "  Pratt  v.  Ogdensburg  &c.   R.  Co., 

transportation    on    a    regular    freight  102    Mass.    557;    Evans    v.    Fitchburg 

schedule  is  not  liable  for  its  loss  be-  R.   Co.,   Ill   Mass.   142,   15  Am.  Rep. 

cause    it    refuses    to    attach    the    car  19;    Hutchinson  v.  Chicago,  St.  P.  M. 

to    a    passenger    train    or    otherwise  &  O.  R.  Co.,  27  Minn.  524,  35  N.  W. 

hasten  the   shipment,   upon   receiving  433 ;  Newby  v.  Chicago  &c.  R.  Co.,  19 

notice  that   the  animal   is   ill,   where  Mo.  App.  391. 

the  train   carrying  it  is   substantially  *^  See    succeeding   section.      A   pro- 

on    schedule    time,    and    there    is    no  vision  in  a  contract  for  transportation 

faster  freight  train  to  which  it  could  of  live  stock,  that  the  rules,   resrula- 

be  attached.     Pine  v.  Chicago  &c.  R.  tions    and    conditions    prescribed    by 

Co.  (Iowa),  133  N.  W.  128,  39  L.  R.  the  shipper  shall  be  binding  on  the 


284  BAILMENTS. 

by  defective  cars  and  appliances/®  and  for  loss  caused  by  the 
management  of  his  vehicle.  For  instance,  in  the  management  of 
a  train,  sudden  jerks  and  movements  of  the  cars  may  occur  which 
would  not  damage  ordinary  freight,  but  may  injure  animals  by 
throwing  them  against  each  other,  or  throwing  them  dov/n.*^ 
He  is  also  liable  for  unreasonable  delay  in  beginning  the  transpor- 
tation.** In  general,  the  liability  for  delay  in  transportation  is 
that  of  any  other  carrier  and  he  is  bound  to  carry  within  a  rea- 
sonable time,*^  but,  in  the  case  of  delay  of  a  carrier  of  live  stock, 
the  nature  of  the  freight  requires  reasonable  and  suitable  atten- 
tion to  their  wants  and  safety.^"  A  deviation  from  the  agreed 
route  or  departure  from  the  agreed  method  of  transportation 
renders  the  carrier  liable  as  an  insurer  and  deprives  him  of  the 
benefit  of  exemptions  contained  in  the  original  contract.^^ 

§  261.  Special  contract  and  limitation  of  liability. — Or- 
dinarily, stock  shipped  by  rail  is  carried  under  a  special  contract 
by  which  the  shipper  undertakes  the  loading  and  unloading  and 
the  care  of  the  stock  on  the  way.  Under  such  a  contract  the  car- 
rier is  not  liable  for  injuries  caused  by  a  failure  to  feed  and 
water,^^  but  is  under  a  duty  to  furnish  the  shipper  all  reasonable 
opportunities  to  care  for  his  stock,  in  the  way  of  feed,  water,  and 
whatever  else  may  be  necessary  for  their  proper  transportation.^* 

carrier,  and  that  the  signing  of  the  Am.  &  Eng.  R.  Cas.  537;    Philadel- 

contract  by  the  shipper  shall  be  con-  phia   &    Wilmington   R.    Co.   v.    Leh- 

clusive  evidence  of  his  agreement,  is  man,  56  Md.  209,  40  Am.  Rep.  415. 

invalid.    Houtz  v.  Union  Pac.  R.  Co.,  **  St.   Louis,   I.   M.   &   S.   R.   Co.  v. 

33  Utah  175,  93  Pac.  439,  17  L.  R.  A.  Jones,  93  Ark.  537,  125  S.  W.  1025,  137 

(N.  S.)  628n.  Am.  St.  99;  St.  Louis  &  S.  F.  R.  Co.  v. 

*«See   cases   cited   in   note   17.     As  Pearce,  82  Ark.  353,   101   S.  W.  760, 

where  a  car  was  not  reasonably  safe  118  Am.  St.  75.    See  note  130  Am.  St. 

for  the  transportation  of  horses  with-  455. 

out  proper  bedding,  the  carrier's  duty  ^  Chicago,  B.  &  Q.  R.  Co.  v.  Slat- 
was  to  furnish  such  bedding.  Allen  tery,  76  Nebr.  721,  107  N.  W.  1045, 
v.  Chicago,  B.  &  Q.  R.  Co.,  82  Nebr.  124  Am.  St.  825. 

/726,  118  N.  W.  655,  23  L.  R.  A.  (N.  "McKahan  v.  American  Exp.  Co., 

/  S  )  278n.  209  Mass.  270,  95  N.  E.  785,  35  L.  R. 

"Chicago  &  N.  W.  R.  Co.  v.  Calu-  A.    (N.   S.)    1046n,  Ann.  Cas.   1912B. 

met    Stock   Farm,   96    111.    App.    337,  612  and  note. 

affd.  194  111.  9,  61  N.  E.  1095,  88  Am.  ■*' Elliott   R.   R.    (2d  ed.),   §   1553; 

St.  68;    Chicago   &   Ahon   R.    Co.   v.  Central  R.  Co.  v.  Bryant,  73  Ga.  722; 

Grimes,  71  111.  App.  397;    Bartelt  v.  Lewis  v.  Pennsvlvania  R.  Co.,  70  N. 

Oregon  R.  &  Nav.  Co..  57  Wash.  16,  J.  L.  132,  56  At'l.  129,  1  Am.  &  Eng. 

106  Pac.  487.  135  Am.  St.  959.  Ann.  Cas.  156  and  note;  56  Atl.  129, 

"Cincinnati,  I.  St.  L.  &  C.  R.  Co.  v.  aflfd.  71  N.  J.  L.  339,  59  Atl.  1117. 

Case,  122  Ind.  310,  23  N.  E.  797,  42  "Wabash,  St.  L.  &  P.  R.  Co.  v. 


CARRIERS    OF    LIVE    STOCK.  285 

Nor  is  the  carrier  relieved  from  responsibility  if  tlie  shipper  who 
has  expressly  agreed  to  accompany  the  stock  as  caretaker  fails  to 
do  so,  and  the  company,  with  knowledge  of  his  failure,  proceeds 
under  the  contract.^*  Where  the  care  of  the  stock  is  in  the  hands 
of  the  owner,  or  a  caretaker  appointed  as  his  agent  for  the  pur- 
pose, however,  the  burden  of  proof  is  upon  him  to  show  that  any 
injury  thereto  was  caused  by  negligence  of  the  carrier,  and  not 
by  his  own.^^  The  carrier  of  live  stock  needs  no  contract  exemp- 
tion from  losses  occasioned  by  the  peculiar  nature  of  animals,°° 
and  cannot  by  contract  exempt  himself  from  the  consequences  of 
his  own  negligence.'^"  The  general  rules  applying  to  the  limitation 
of  liability  by  contract  in  the  carriage  of  goods  apply  equally  to 
the  carriage  of  live  animals,^^  and  in  their  discussion  we  con- 
sidered many  cases  where  live  stock  was  transported. 

§  262.  Statutory  regulation. — In  some  states,  statutes 
provide  that  stock  carried  by  railroads  shall  not  be  confined  for 
a  longer  time  than  a  certain  one  designated,  without  unloading 
for  water^®  and  feed.  There  is  a  similar  act  of  Congress  in  rela- 
tion to  the  transportation  of  stock  between  states,  that  no  rail- 
road company  whose  road  forms  any  part  of  a  line  of  road  over 
which  cattle,  sheep,  swine  or  other  animals  are  conveyed  from 
one  state  to  another  shall  confine  such  stock  in  cars  for  more 
than  twenty-eight  consecutive  hours,  without  unloading  them  for 
rest,  water,  and  feeding,  unless  they  are  carried  in  cars  in  which 
they  have  proper  food,  water,  and  space  and  opportunity  to  rest, 

Pratt,  IS  111.  App.  177;  Clarke  v.  W.  198.  34  L.  R.  A.  (N.  S.)  1013,  Ann. 
Rochester  &c.  R.  Co.,  14  N.  Y.  570,  67  Cas.  1912C.  915,  quoting  from  4  El- 
Am.  Dec.  205 ;  Ta3lor,  B.  &  H.  R.  Co.  liott  R.  R.,  §  1549. 
V.  Montgomerv'.  4  Tex.  App.  (Civil  "*  Lewis  v.  Pennsylvania  R.  Co.,  70 
Cas.)  401,  16  S.  W.  178;  Abrams  v.  N.  J.  L.  132,  56  Atl.  129,  affd.  71  N.  J. 
Milwaukee.  L.  S.  &  W.  R.  Co.,  87  L.  339,  59  Atl.  1117.  See  cases  cited 
Wis.  485.  58  N.  W.  780,  41  Am.  St.  55,  in  note  1,  ante. 
M  Am.  &  Eng.  R.  Cas.  313.  "Atlantic    Coast    Line    R.    Co.    v. 

^vX^  "Chicago,  B.  &  Q.  R.  Co.  v.  Slat-  Dexter,  50  Fla.   180.  39  So.  634.  Ill 

terv.  1(>  Nebr.  721,   107  N.  W.  1045,  Am.   St.  116;    Bartelt  v.  Oregon  &c. 

/  124  Am  St.  825.  Nav.  Co.,  57  Wash.  16,  106  Pac.  487, 

V       ''  Cleve  v.   Chicago  &c.   R.  Co.,  77  135  Am.  St.  959. 

'^      Nebr.  166,  108  N.  W.  982,  124  Am.  St.  '    "'See  §§  181-201.  See  also,  Louis- 

-^7,  15  Am.  &  Eng.  Ann.  Cas.  33  and  ville    &c.    R.    Co.    v.    Tharper    (Ga. 

note;    Bartelt    v.    Oregon    &'c.    Nav.  App.),  75  S.  E.  677. 

Co..  57  Wash.   16,  106  Pac.  487,  135  ''""Transportation   of  Live   Stock." 

Am.  St.  959.   See  also,  Colsch  v.  Chi-  19  Cent.  L.  J.  161,  168;   note  44  L.  R. 

cago  &c.  R.  Co.,  149  Iowa  176,  127  N.  A.  449. 


y 


286  BAILMENTS. 

unless  prevented  by  storm  or  some  accident  occurs,  and  that 
animals  so  unloaded  shall  be  properly  fed  and  watered  by 
the  owner  or  custodian,  or,  in  case  he  fails  so  to  do,  by  the  rail- 
road company,  which  will  thereby  acquire  a  lien,  tor  the  food, 
care,  and  custody  furnished,  and  shall  not  be  liable  for  any  de- 
tention of  them.  A  penalty  is  imposed,  recoverable  in  a  civil  ac- 
tion by  the  United  States.®**  It  has  been  held  that  this  statute  is 
constitutional  as  a  regulation  of  interstate  commerce,®^  that  it 
does  not  apply  to  shipments  from  one  point  to  another  in  the 
same  state,^^  that  the  confinement  of  the  whole  shipment  of  ani- 
mals without  tmloading  in  violation  of  the  statute  is  a  single 
offense,  and  not  separate  offenses  for  each  animal  carried,^^  and 
that  an  accident  caused  by  the  carrier's  negligence  is  not  an  ex- 
cuse for  failure  to  comply  with  the  statute.®*  This  statute  does 
not  change  or  abrogate  in  any  manner  the  carrier's  common-law 
liability,  and  does  not  authorize  him  to  hold  stock  twenty-eight 
hours  in  trains  if  such  would  be  negligence,®^  nor  prevent  him 
from  liability  for  negligence  in  their  care  if  delayed  by  storm.®® 

§  263.  Termination  of  relation  and  delivery. — A  carrier 
of  live  stock  must  deliver  the  cattle  to  the  party  designated  by 
the  terms  of  shipment,  o  -  to  his  order,  at  the  place  of  destination, 
and  where  he  delivers  them  to  one  not  entitled  to  receive  them, 
he  is  accountable.®^     The  general  rules  as  to  the  place,  person, 

^  ^V.   S.  Rev.  Stat.,   §§  4386.  4387,  Exch.  Bank.  92  Va.  495,_23_SJE.  935, 

4388.  4389.    For  full  review  of  cases  44  L.  R.  A.  449. 

construing  this  statute  see  Wabash  R.  '^   "^  Nashville  C.   &  St.  L.  R.   Co.  v. 

Co.  v.  United  States.  178  Fed.  5,  101  Heggie,  86  Ga.  210,  12  S.  E.  363.  22 

C.  C.  A.  133,  21  Am.  &  Eng.  Ann.  Cas.  Am.  St.  453;   Missouri  Pac.  R.  Co.  v. 

819,  and  note.  By  amendment  of  June  Ivy,  79  Tex.  444,  15  S.  W.  692 ;   Ches- 

20,    1906,    the   time    was    changed   to  apeake    &    O.    R.    Co.    v.    American 

thirty-six  hours  where  the  owner  or  Exch.  Bank,  92  Va.  495,  23  S.  E,  935, 

custodian   so   requests  in   writing.  44  L.  R.  A.  449.    And  a  carrier  can- 

"  United    States  v.   Boston  &c.   R.  not  contract  that  the  shipper  will  un- 

Co.,  IS  Fed.  209.  load  and  relieve  itself  from  liability 

*- United  States  v.  East  Tennessee  under  this  clause,  and  if  it  does  give 

&:c.  R.  Co.,  13  Fed.  642,  9  Am.  &  Eng.  the  shipper  opportunity  to  unload,  it 

R.  Cas.  259.  is    negligence    per    se.      Reynolds    v. 

^  United   States  v.   Boston   &c.   R.  Great  Northern  R.  Co.,  40  Wash.  163, 

Co..  15  Fed.  209.  .  82>ac.  161,  111  Am,  St.  883. 

**  Newport  News  &c.  Co.  v.  United  ^.>**  Chicago,  B.  &  Q.  R.  Co.  v.  Slat- 
States,  61  Fed.  488,  9  C.  C.  A.  579;  tery,  76  Nebr.  721,  107  N.  W.  1045, 
Nashville  &c.  R.  Co.  v.  Heggie,  86  Ga.  >24  Am.  St.  825. 

210,    12  S.   E.  363,  22  Am.    St.  453;  '      "North    Pennsylvania    R.    Co.    v. 

Chesapeake  &  O.  R.  Co.  v.  American  Commercial  Nat.  Bank,  123  U.  S.  727. 


CARRIERS    OF    LIVE    STOCK,  287 

manner   and   time   of    delivery    applying   to   carriers    of   goods 
equally  apply  to  carriers  of  live  stock. 

§  264.  Delivery  to  connecting  carrier. — Delivery  to  a  con- 
necting carrier  is  completed  by  carrying  to  the  terminus  on  the 
connecting  road  and  notifying  the  second  carrier  of  the  arrival 
or  when  the  second  carrier  has  in  fact  taken  control  of  the 
stock.^®  The  first  carrier  is  held  liable  for  injuries  occasioned  by 
a  defective  or  unsuitable  car  after  delivery  to  the  connecting  car- 
rier/* even  though  he  had  contracted  to  be  liable  only  for  loss 
occasioned  during  transportation  over  his  own  line""  or  the  ship- 
per's agent  saw  them  put  in  an  unsuitable  car.'^^  Liability  of  the 
first  carrier  ordinarily  ceases,  however,  upon  delivery  to  the  con- 
necting carrier,^^  unless  by  contract  he  has  assumed  the  through 
transportation  of  stock  to  a  pomt  beyond  his  terminus.'^  The 
first  carrier  may  be  negligent  if  he  transfers  to  a  connecting  car- 
rier without  giving  opportunity  for  feeding  and  watering  the 
stock,  though  requested  by  the  shipper;'^*  likewise  he  is  liable  if  he 
forwards  them  over  a  different  route  from  that  selected  by  the 
shipper,^^  nor  is  the  obligation  to  deliver  at  a  proper  place  and 
in  a  proper  manner,  conditioned  on  the  shipper  accompanying  the 
stock.''®  The  carrier  must  furnish  suitable  appliances  for  unload- 
ing," and  if  he  delivers  directly  to  a  stockyard,  and  not  at  its  sta- 
tion, he  may  make  a  separate  terminal  charge  for  delivery  at  the 
stockyards,^*  and  where  the  carrier  fails  in  his  duty  to  furnish 

.    31   L.   ed.  287,  8  Sup.  Ct.  266.    See  /"  Ohio  &c.  R.  Co.  v.  McCarthy,  96 

note  to  Duntley  v.  Boston  &c.  R.  Co.,  U.  S.  258   24  L.  ed.  693. 

66  N.  H.  263,  20  Atl.  327,  9  L.  R.  A.  '  "Galveston,  H.  &  S    A.  R.  Co.  v. 

/449,  451,  49  Am.  St.  610.  Ir.ey  (Tex.  Civ.  App.),  23  S.  W.  321. 

V        *«  Louisville,   St.  L.  &  T.  R.  Co.  v.  .^^*  Texas  &c.   R.  Co.   v.   East  in.   100 

Bourne,  16  Ky.  L.  825.  29  S.  W.  975 ;  Tex.  556,  102  S.  W.  105.    And  if  the 

Texas    &    P.    R.    Co.    v.    Scoggin,    40  shipper  in  a  letter  to  the  carrier  di- 

'     (Tex.  Civ.  App.)  526,  90  S.  W.  521.  rects  delivery  to  one  connecting  car- 

y      "'Jones  V.  St.  Louis  &c.  R.  Co.,  115  rier,  the  agent  who  delivered  to  the 

Mo.  App.  232,  91  S.  W.  158;    Eckert  first  carrier  has  no  authority  to  direct 

/v.   Pennsylvania  R.   Co.,  211    Pa.    St.  deliverv  to  another,  and  the  carrier  is 

/  267,  60  Atl.  781,  107  Am.  St.  571.  liable  for  deliverv  as  this  agent  di- 

y '"' rndianapolis.   B.  &  W.  R.   Co.  v.  rected.    Southern  R.  Co.  v.  Webb.  143 

'Strain,  81  111.  504.  Ala.  304,  39  So.  262,  111  Am.  St.  45. 

"  Eckert    v.    Pennsylvania    R.    Co.,  """  Southern  R.  Co.  v.  Webb.  143  Ala. 

211  Pa.  267,  60  Atl.  781,  107  Am.  St.  304,  39  So.  262,  111  Am.  St.  45. 

571.  ■^Paramore  v.  Western  R.  Co,  53 

"Cincinnati  &c.  R.  Co.  v.  Greening,  Qi.  383. 
30  Ky.  L.  1180,  100  S.  W.  825;    Nash--       "Texas  &c.  R.  Co.  v.  Gray   (Tex. 

ville  &c    R    Co.  V.   Stone,   112  Tenn.  Civ.  App.),  99  S.  W.  1125^ 
348,  79  S.  W.  1031,  105  Am.  St.  955. 


288  BAILMENTS. 

suitable  yards  and  facilities  for  the  delivery  of  stock  which  he 
contracts  to  carry,  he  may  be  compelled  to  deliver  through  the 
facilities  which  the  consignee  furnished.'^  The  presumption  that 
the  cattle  were  injured  in  the  possession  of  the  last  carrier^*  does 
not  seem  to  hold  if  the  shipper  accompanied  the  cattle.*^  As  was 
said,  the  general  rules  applying  to  the  carrier  of  goods  are  equally 
applicable  to  the  carrier  of  live  stock,  and  this  chapter  has  suf- 
ficiently dealt  with  the  peculiarities  in  those  rules  caused  by  the 
nature  of  the  freight  where  the  contract  is  to  carry  live  animals. 

"Covington    Stock    Yards    Co.    v.  ■/"" Walker  v.  Keenan,  73  Fed.  755,  19 
Keith,  139  U.  S.  128,  35  L.  ed.  7Z,  11     C.  C.   A.   668;   Post  v.   Southern  R. 
/^up   Ct.  461.  Co.,  103  Tenn.  184,  52  S.  W.  301,  55 

V      *"  keynolds   v.   Great   Northern   R.     L.  R.  A.  481. 
Co.,  40  Wash.  163,  82  Pac  161,  111 
Am.  St.  883. 


CHAPTER  XVI. 


CARRIERS    OF    PASSENGERS. 


§265.  Defined  and  distinguished.         §284. 

266.  Kinds  of  passenger  carriers. 

267.  Who  must  be  carried. 

268.  Creation    of    relation — Offer         285. 

to  become  passenger.  286. 

269.  Acceptance   by  carrier. 

270.  Duties  of  carrier  toward  pas- 

senger. 287. 

271.  Carrier's  duty  as  to  accom- 

modations. 288. 

272.  Duty   to   protect   passengers 

from  third  persons.  289. 

273.  Violation   of   carrier's   duties 

toward  passenger  consid- 
ered as  breach  of  contract, 
or  as  tort. 

274.  Carrier's    rules    and    regula-         290. 

tions. 

275.  Ejection  for  failure  to  com-         291. 

ply  with  regulations  or  be-         292. 
cause  of  faulty  ticket. 

276.  Carrier's  right  to  compensa-         293. 

tion. 

277.  Ticket  as  a  contract.  294. 

278.  Conclusiveness  of  ticket.  295. 

279.  Loss  of  ticket.  296. 

280.  Stop-over  privileges. 

281.  Time  limitations.  297. 

282.  Transfer      of      tickets — non- 

transferable tickets.  298. 

283.  Excursion  tickets  and  round- 

trip  tickets.  299. 


Mutilated  tickets — Showing 
ticket  before  admission  to 
train. 

Transfers. 

Limitation  of  liability  by 
contract — Where  one  trav- 
els on  pass. 

Limitation  of  liability  where 
fare  paid. 

Termination  of  relation  of 
carrier  and   passenger. 

Duty  to  stop  at  stations,  to 
announce  stations,  to  con- 
form with  schedules,  and 
to  give  passenger  proper 
instructions. 

Sleeping  and  parlor-car  com- 
panies. 

Sleeping-car   tickets. 

Carriers  of  passengers  by 
water. 

Liability  for  baggage  of  pas- 
sengers. 

What  is  baggage. 

Personal  baggage. 

Merchandise  carried  as  bag- 
gage. 

Limitation  of  liability  for 
baggage. 

Baggage  checks  and  limita- 
tion of  liability  by  ticket. 

Carrier's   lien  on  baggage. 


§  265.  Defined  and  distinguished. — A  carrier  of  passen- 
gers is  not  a  bailee,  as  is  a  carrier  of  goods.  The  carrier  of  goods 
has  the  unlimited  control  of  them,  and  it  is  considered  that  their 
safety  depends  upon  the  care  which  he  gives  to  them.  But  a  pas- 
senger is  a  person,  with  intelligence  and  the  power  of  locomotion, 
enabling  him  largely  to  care  for  himself,  and  is  not  entirely  un- 
der the  carrier's  control.  Therefore  while  the  carrier  of  goods 
is  held  to  be  an  insurer  of  their  safety,  the  common  carrier  of 
passengers  *'is  not,  under  the  law,  an  insurer  of  their  safety, 

289 

Bailments — 19 


290  BAILMENTS. 

nevertheless  the  law  requires  of  it  the  exercise  of  the  highest  de- 
gree of  care  consistent  with  the  mode  of  its  conveyance  and  the 
practical  prosecution  of  its  business  for  the  safety  and  protection 
of  its  passengers."^  The  carrier  of  goods  may  be  also  the  car- 
rier of  passengers,  and  may  carry  both  goods  and  passengers 
upon  the  same  conveyance.  In  relation  to  the  baggage  of  pas- 
sengers, the  carrier  of  passengers  is  the  carrier  of  goods.  In  the 
holding  out  as  carrying  persons  for  hire,  the  carrier  of  passen- 
gers is  similar  to  the  carrier  who  holds  himself  out  as  carrying 
goods  for  hire,  and  though  the  law  relating  to  the  carrier  of  pas- 
sengers is  not  a  part  of  the  law  of  bailments,  yet,  because  of  its 
similarity  to  the  law  of  carriers  of  goods,  it  is  usually  and  prop- 
erly considered  in  connection  with  the  law  of  bailments. 

§  266.  Kinds  of  passenger  carriers. — Railroad  companies, 
because  of  the  nature  of  their  business,  hold  themselves  out  as 
public  carriers  of  passengers,  and  to  the  capacity  of  their  pas- 
senger trains  they  must  carry  all  suitable  persons  who  ofifer  them- 
selves in  conformity  with  the  company's  reasonable  rules.*  In  gen- 
eral, they  are  not  obliged  to  carry  passengers  on  freight  trains,' 
unless  they  have  by  custom  held  themselves  out  as  public  carriers 
of  passengers  thereon,  or  special  trains,*  and,  ordinarily,  the  rail- 
road company  is  not  deemed  a  carrier  of  passengers  as  to  one  al- 
lowed to  ride  on  a  freight  train,^  a  log  train,®  a  work  train,  con- 
struction train,  hand  car,  locomotive  or  engine  cab.''    Where  one 

'Indiana  Union  Tr.  Co.  v.  Keiter,  'Atchison,   T.   &    S.    F.    R.    Co.    v. 

175  Ind.  268,  92  N.  E.  982;  Louisville  Headland,  18  Colo.  477,  33  Pac.  185, 

&c.  Tr.  Co.  V.  Korbe,  175  Ind.  450,  93  20  L.  R.  A.  822.  58  Am.  &  Eng.  R. 

N.  E.  5;  Millmore  v.  Boston  Electric  Cas.  4;   Illinois  Cent.  R.  Co.  v.  Nel- 

R.  Co.,  194  Mass.  323,  80  N.  E.  445,  son,  59  111.  110;  Powers  v.  Boston  & 

120  Am.  St.  558,  11  L.  R.  A.  (N.  S.)  M.  R.  Co.,  153  Mass.  188,  26  N.  E. 

140.     See  note  97  Am.  St.  527,  as  to  446.     See  note  5  Am.  &  Eng.  Ann. 

degree  of  care.    A  common  carrier  of  Cas.  43. 

passengers    is    held    to   utmost    prac-  *  McCarter    v.    Greenville    Tr.    Co., 

ticable  care.     Interurban  R.  &  T.  R.  72  S.  Car.  134,  51   S.  E.  545,  5  Am. 

Co.  V.   Hancock,  75   Ohio  St.  88,   78  &'Eng.  Ann.  Cas.  42  and  note. 
N.  E.  964,  116  Am.  St.  710.                    '/  'See  cases  cited  in  note  3.     As  to 

^Elliott  R.  R.  (2d  ed.),  §  1574;''  one  riding  on  a  log  train,  see  John- 
Lake  Erie  &  W.  R.  Co.  v.  Acres,  108  son  v.  Louisiana  R.  &  Nav.  Co.,  129 
Ind.  548,  9  N.  E.  453.  28  Am.  &  Eng.  La.  332,  56  So.  301,  36  L.  R.  A.  (N. 
R.   Cas.    112;    Bennett  v.   Button.    10  S.)   887. 

N.  H.  481 ;  Mershon  v.  Hobensack,  22  *  See   Harvey  v.   Deep   River  Log- 

N.  J.  L.  372,  aflfd.  23  N.  J.  L    580;  ging  Co.,  49  Ore.  583,  90  Pac.  501,  12 

Jencks  v.  Coleman,  2  Sumn.   (U.  S.)  L.  R.  A.  (N.  S.)    131n. 

221,  Fed.  Cas.  No.  7258.  'Elliott   R.   R.    C2d   ed.),   §    1578; 


CARRIERS    OF    PASSENGERS. 


291 


railroad  company  owns  the  roadbed  and  track,  and  another  is  op- 
erating cars  thereon,  the  operating  company  is  the  carrier  of  pas- 
sengers.^ The  receiver  or  trustee  operating  a  railroad  is  held  a 
carrier  of  passengers.**  Other  common  carriers  of  passengers  are 
the  operators  of  street  railroads,^"  stagecoaches,"  steamboats,^^ 
sea-going  vessels,"  omnibuses,^'*  ferries,^'^  or  all  who  hold  them- 
selves out  as  carrying  the  public  for  hire  within  the  limitations 
of  their  business.  The  carrier  need  not  own  his  conveyance.^' 
It  has  been  held  that  the  owner  of  a  passenger  elevator  is  a 
common  carrier  of  passengers,"  likewise  the  owner  of  a  sight- 
seeing automobile,^^  and  that  the  proprietor  of  a  scenic  railway 
operated  for  amusement  purposes  is  a  common  carrier  as  to  the 
degree  of  care  owed  to  his  passengers.^^  A  livery  stable  keeper 
merely  as  such  is  not  a  common  carrier.^" 


]\Ienaugh  v.  Bedford  R.  Co.,  157  Ind. 
20,  60  N.  E.  694;  Hoar  v.  Maine 
Central  R.  Co.,  70  Maine  65,  35  Am. 
Rep.  299 ;  Giles  v.  Boston  &  A.  R.  Co., 
149  Mass.  204,  21  N.  E.  311,  14  Am. 
St.  411;  Stringer  v.  Missouri  Pac. 
R.  Co.,  96  Mo.  299,  9  S.  W.  905; 
Rathbone  v.  Oregon  R.  Co.,  40  Ore. 
225,  66  Pac.  909;  Burns  v.  Southern 
R.  Co.,  63  S.  Car.  46,  40  S.  E.  1018; 
International  &  G.  N.  R.  Co.  v.  Han- 
na  (Tex.  Civ.  App.).  58  S.  W.  548. 
See  Grimshaw  v.  Lake  Shore  &c.  R. 
Co.,  205  N.  Y.  371.  98  N.  E.  762,  40 
L.  R.  A.   (N.  S.)  563  and  note. 

*  Byrne  v.  Kansas  Citv  &c.  R.  Co., 
61  Fed.  605,  9  C.  C.  A.  666,  24  L.  R. 
A.  693;  Chicago,  R.  I.  &  P.  R.  Co. 
V.  Groves,  56  Kans.  601.  44  Pac.  628; 
Smith  V.  St.  Louis  &c.  R.  Co.,  85  Mo. 
418.  55  Am.   Rep.  380. 

®Lamphear  v.  Buckingham,  33 
Conn.  237;  Jones  v.  Pennsylvania  R. 
Co.,  19  D.  C.  178;  Klein  v.  Jewett, 
26  N.  J.  Eq.  474,  affd.  27  N.  J.  Eq. 
550;  Washington,  Alexander  & 
Georgetown  R.  Co.  v.  Brown,  17 
Wall.    (U.   S.)   445,  21   L.   ed.  675. 

^"Dean  v.  Chicago  General  R.  Co., 
64  111.  App.  165;  Pray  v.  Omaha  St. 
R.  Co.,  44  Nebr.  167.  62  N.  W.  447, 
48  Am.  St.  717;  Spellman  v.  Lincoln 
&c.  R.  Co.,  36  Nebr.  890,  55  N.  W. 
270, 20  L.  R.  A.  316,  38  Am.  St.  753. 


"Bennett  v.  Dutton,  10  N.  H.  481. 

"Jencks  v.  Coleman,  2  Sumn.  (U. 
S.)  221. 

"Thomp.   Neg.,   §  6417. 

'*  Parmelee  v.  McNulty,  19  111.  556. 

"Spirey  v.  Farmer,  3  N.  Car.  519; 
Hopkins  v.  W.  Jersey  &c.  R.  Co.,  225 
Pa.  St.  193,  73  Atl.  1104,  17  Am.  & 
Eng.  Ann.  Cas.  371  and  note.  But 
persons  owning  an  island  in  a  river 
maintaining  on  it  places  of  amuse- 
ment, operating  thereto  a  ferry,  and 
carrying  excursions,  are  not  common 
carriers  of  passengers.  Meisner  v. 
Detroit,  B.  I.  &  W.  Ferry  Co.,  154 
Mich.  545.  118  N.  W.  14.  19  L.  R. 
A.   (N.  S.)  872,  129  Am.  St.  493. 

^^Counie  Glove  Co.  v.  Merchants* 
Dispatch  Co.,  130  Iowa  327,  106  N.  W. 
749,  4  L.  R.  A.  (N.  S.)  1060,  114  Am. 
St.  419. 

"Chicago  Exch.  Bldg.  Co.  v.  Nel- 
son, 197  111.  334.  64  N.  E.  369; 
Springer  v.  Ford.  88  111.  App.  529. 

'*  Hinds  V.  Steere,  209  Mass.  442, 
95  N.  E.  844,  35  L.  R.  A.  (N.  S.) 
658. 

"O'Callaghan  v.  Dellwood  Park 
Co.,  242  111.  336,  89  N.  E.  1005,  26  L. 
R.  A.  (N.  S.)  1054n,  134  Am.  St. 
331,   17  Am.  &  Eng.   Ann.   Cas.  407. 

""  McGregor  v.  Gill.  114  Tenn.  521, 
86  S.  W.  318,  108  Am.  St.  919. 


292  BAILMENTS. 

§  267.  Who  must  be  carried. — The  carrier  of  passengers 
must  not  discriminate  without  good  cause  between  those  who 
apply  for  carriage,  and  must  carry  all  such  if  there  are  no  legal 
objections  and  proper  compensation  is  paid  or  tendered,  and  they 
are  able  to  take  care  of  themselves,'^  for  carriers  of  passengers 
are  common  carriers.  But  as  the  carrier  of  goods  only  carries 
such  goods  as  are  in  fit  condition  to  be  carried,  so  the  passenger 
carrier  may  exclude  those  w^ho  are  not  proper  to  be  carried,  as 
those  afflicted  with  contagious  disease,"  drunk, ^^  insane,^*  so  ill 
as  to  require  medical  attendance  upon  an  ocean  steamer,^^  those 
who  may  have  evil  designs  upon  the  carrier  or  its  passengers,  or 
whose  object  is  to  interfere  with  the  carrier's  business,^"  those  of 
bad  character  or  indecent  habits,^^  or  who  refuse  to  submit  to 
the  reasonable  regulations  of  the  carrier,^^  or  one  who  would  be 
exposed  to  personal  danger  from  the  populace  if  carried.^" 
The  carrier  may  exclude  one  who  because  of  disability  may  be 
likely  to  need  more  than  ordinary  attention,^''  or  is  helpless,  as  a 
blind  man.^^  But  to  some  of  these  rules  there  are  exceptions  or 
qualifications.     A  blind  man  may  be  excluded  unless  the  carrier 

"Elliott   R.   R.    (2d  ed.),    §§   1574,  S.  E.  87,  63  L.  R.  A.  946.     See  note 

1575,  1576;  Price  v.  St.  Louis,  I.  M.  26  L.  R.  A.  (N.  S.)   171. 

&  S.  R.   Co.,  75  Ark.  479,  88  S.  W.  ="  Connors   v.      Cunard      Steamship 

575,  112  Am.  St.  79;  111.   Central  R.  Co.,  204  Mass.  310,  90  N.  E.  601,  26 

Co.    V.    Smith.   85    Miss.    349,   Zl   So.  L.  R.  A.   (N.   S.)    171n,  134  Am.   St. 

643,  70  L.  R.  A.  642,  107  Am.  St.  293  662,  17  Am.  &  Eng.  Ann.  Cas.   1051. 

and  note.     See  cases  cited  in  note  2  ^®  Thurston  v.  Union  Pac.  R.  Co.,  4 

and  in  notes  22  to  2>2,.  Dill.  (U.  S.)  321 ;  The  D.  R.  Martin, 

=^  Louisville    &    N.    R.    Co.    v.    Du  11   Blatchf.    (U.   S.)  233. 

Bose,  120  Ga.  339,  47  S.  E.  917;  Du  "Jencks  v.  Coleman,  2  Sumn.   (U. 

Bose  V.  Louisville  &  N.  R.  R.  Co.,  121  S.)      221,      Fed.      Cas.      No.      7258; 

Ga.  308,  48   S.   E.   913;   Thurston  v.  Stephenson  v.  West   Seattle  &c.   Co., 

Union   Pac.   R.  Co.,  4  Dill.    (U.   S.)  22  Wash.  84.  60  Pac.  51. 

321,   Fed.    Cas.   No.    14019.     But   the  ^Elliott   R.   R.    (2d   ed.),   §    1576; 

carrier    is    liable    for    breach    of    an  Crawford  v.  Cincinnati,  H.  &  D.  R. 

express  contract  to  carry  one  afiflict-  Co.,    26      Ohio    St.    580;      Drake    v. 

ed  with  smallpox.    Jenkins  v.  Chesa-  Penna.    R.    Co.,    137   Pa.    St.    352,  20 

peake  &c.  R.  Co.,  61  W.  Va.  597.  57  Atl.  994,  21  Am.  St.  883. 

S.   E.  48,   11  Am.  &  Eng.  Ann.  Cas.  "*  Pearson   v.   Duane,   4   Wall.    (U. 

96-  Pullman  Car  Co.  v.  Krauss,  145  S.)   605.   18  L.   ed.  447. 

Ala.  395,  40  So.  398,  4  L.  R.  A.   (N.  '"Croom   v.    Chicago,   M.   &  St.   P. 

S  )  103,  8  Am.  &-  Eng.  Ann.  Cas.  218.  R.  Co.,  52  Minn.  296,  53  N.  W.  1128, 

^  Price  V    St.  Louis,  L  M.  &  S.  R.  18  L.  R.  A.  602.  38  Am.   St.  557. 

Co     75  Ark.  479,  88  S.  W.  575,   112  "Illinois   Central   R.   Co.  v.   Allen. 

Am.  St.  79.  121  Ky.  138.  89  S.  W.  150,  11  Am.  & 

^  Meyer    v     St.    Louis    R.    Co.,    54  Eng.  Ann.  Cas.  970;  Illinois  Central 

Fed    li6    4  C.  C.  A.  221;  Owens  v.  R.    Co.    v.    Smith,    85    Miss.    349,    7>1 

Macon  &c.   R.   Co.,   119  Ga.  230,  46  So.  643,  70  L.  R.  A.  642,  107  Am.  St. 

293n. 


CARRIERS    OF    PASSENGERS.  293 

knows  that  he  is  competent  to  travel  alone.^"  The  carrier  may 
demand  that  the  insane  be  properly  attended  and  safely  re- 
strained, and  may  even  then  refuse  if  they  are  liable  to  become 
obnoxious  or  dangerous  to  other  persons.^^  Those  who  are  so 
intoxicated  as  to  be  dangerous,  or  annoying,  or  unable  to  care  for 
themselves  may  be  excluded.^* 

§  268.     Creation  of  relation — Offer  to  become  passenger. 

— A  passenger  is  one,  not  an  employe  of  the  carrier  in  its  service, 
who  undertakes  with  the  carrier's  consent  to  travel  in  the  car- 
rier's conveyance.  The  relation  of  carrier  and  passenger  de- 
pends upon  the  existence  of  a  contract  of  carriage,  express  or 
implied,  between  the  carrier  and  the  passenger,^^  and  begins  when 
one  with  the  intention  of  becoming  a  passenger  puts  himself  in 
the  care  of  the  carrier,  or  directly  within  its  control.^*^  It  is  not 
necessary  to  purchase  a  ticket  to  create  the  relation,  but  it  may 
be  sufficient  in  case  of  a  railroad  if  one  has  entered  a  place  pro- 
vided for  reception  of  passengers  at  a  time  when  it  is  open  for 
such  purpose,  with  the  intention  to  take  a  train. ^^  The  general 
rule  is  that  every  one  who  is  on  the  public  conveyance  usually 
employed  for  the  carriage  of  passengers,  and  there  for  the  pur- 
pose of  carriage  with  the  consent,  express  or  implied,  of  the 

'^'Zachery  v.   Mobile  &  O.  R.   Co.,  St.   380;    O'Donnell   v.    Kansas    City 

74  Miss.  520,  21  So.  246,  36  L.  R.  A.  &c.   R.   Co.,   197   Mo.   110,  95   S.  W. 

546,  60  Am.  St.  529,  75  Miss.  746,  23  196,  114  Am.  St.  753. 

So.  434,  41  L.  R.  A.  385,  65  Am.  St.  ="  Elliott    R.    R.    (2d   ed.)    §    1579. 

617.     See  cases  cited  in  note  31,  Alabama    City    G.    &.    A.    R.    Co.    v. 

^  Owens  V.  Macon  &c.  R.  Co.,  119  Bates.  149  Ala.  487.  43  So.  98. 

Ga.  230,  46  S.  E.  87,  63  L.  R.  A.  946;  '''Elliott   R.   R.    (2d   ed.),   §    1579; 

Louisville  &c.  R.  Co.  v.  Brewer,  147  Rogers  v.   Kennebec    Steamboat   Co., 

Ky.  166,  143  S.  W.  1014.  86  Maine  261,  26  Atl.  1069,  25  L.  R. 

""  Price  V.  St.  Louis,  I.  M.  &  S.  R.  A.  491,  3  Am.  Neg.  Cas.  590;  Smith 
Co.,  75  Ark.  479,  88  S.  W.  575,  112  v.  St.  Paul  &c.  R.  Co..  32  Minn.  1, 
Am.  St.  79;  Pittsburgh,  C.  &  St.  18  N.  W.  827,  50  Am.  Rep.  50.  One 
Louis  R.  W.  Co.  V.  Vandyne,  57  Ind.  who  is  attempting  to  board,  as  a  pas- 
576,  26  Am.  Rep.  68;  Story  v.  Nor-  senger,  a  train  of  one  of  several  rail- 
folk  &  S.  R.  Co.,  133  N.  Car.  59,  45  S.  road  companies  using  common  tracks 
E.  349.  through   a   station   is   owed  the   care 

^'For   definition   of  passenger,   see  due  a  passenger  by  all  the  railroads 

Alabama    City    G.    &    A.    R.    Co.    v.  using  the  station,  it  is  held.  Chicago 

Bates,  149  Ala.  487,  43  So.  98;  Elliott  R.  L  &  P.  R.  Co.  v.  Stepp,  164  Fed. 

R.  R.  (2d  ed.),  §  1579;  6  Words  and  785,  22  L.   R.   A.    (N.   S.)   350.    But 

Phrases,    5218-5219;    Birmingham    R.  see.  Hunt  v.  New  York  &'C.  R,   Co, 

&c.  Co.  v.  Adams,  146  Ala.  267,  40  So.  212  Mass.  102.  98  N.  E.  787.  40  L.  R. 

385.   119  Am.   St.  27;    Mendenhall  v.  A.    (N.   S.)    778,  holding  that  one  is 

Atchison  &c.   R.   Co.,   66  Kans.   43»,  not  a  passenger  until  he  is  about  to 

71  Pac.  846,  61  L.  R.  A.  120  91  Am.  step  upon  a  train. 


294 


BAILMENTS. 


owner,  is  presumptively  a  passenger.^®  The  two  essential  ele- 
ments of  the  relationship  are  the  undertaking  of  the  person  to 
travel  in  the  carrier's  conveyance  and  the  acceptance  of  the  per- 
son as  a  passenger  by  the  carrier.^^ 

§  269.  Acceptance  by  carrier. — Acceptance  as  a  passen- 
ger is  usually  implied  from  circumstances  rather  than  express.*** 
Those  waiting  for  a  conveyance  with  the  intention  of  boarding  it, 
on  the  carrier's  premises,  in  such  a  situation  as  to  indicate  their 
intention  to  the  carrier's  employes,  are  presumptively  passen- 
gers.*^ Where  one  is  riding  upon  a  freight  train,  an  engine, 
hand  car  or  some  conveyance  upon  which  passengers  are  not  car- 
ried, he  is  presumptively  not  a  passenger,*^  but  one  riding  upon 
a  passenger  conveyance  is  assumed  to  be  there  by  the  invita- 
tion of  the  employes  of  the  carrier,*^  though  this  presumption 
may  be  rebutted  by  evidence.  Persons  are  not  passengers  who 
ride  voluntarily  in  places  not  intended  for  passengers,  as  in  a 
baggage  or  mail  car,  or  upon  an  engine,**  unless  accepted  as 


''Elliott  Railroads  (2d  ed.),  § 
1578;  Louisville,  New  Albany  &  Chi- 
cago, R.  Co.  V.  Thompson,  107  Ind. 
442,  8  N.  E.  18,  9  N.  E.  357,  57  Am. 
Rep.  120;  Pennsylvania  R.  Co.  v. 
Price,  96  Pa.  St.  256,  2  Ky.  L.  183 ; 
Bricker  v.  Philadelphia  R.  R.  Co., 
132  Pa.  St.  1,  18  Atl.  983,  19  Am. 
St.  585;  Chattanooga  Rapid  Transit 
Co.  V.  Venable,  105  Tenn.  460,  58 
A  W.  861,  51  L.  R.  A.  886. 
V  '*  Berry  v.  Missouri  Pac.  R.  Co., 
124  Mo.  223,  25  S.  W.  229. 

*  Elliott  R.  R.  (2d  ed.),  §  1578, 
1579;  Alabama  Citv  G.  &  A.  R.  Co. 
V.  Bates.  149  Ala.  487,  43  So.  98. 

"Fremont,  E  &  AI.  V.  R.  Co.  v. 
Hagblad,  72  Nebr.  773,  101  N.  W. 
1033,  106  N.  W.  1041,  4  L.  R.  A.  (N. 
S.)  254.  9  Am.  &  Eng.  Ann.  Cas. 
1096  and  note.  See  cases  cited  under 
note  37. 

"Vassar  v.  Atlantic  Coast  Line  R. 
Co.,  142  N.  Car.  68,  54  S.  E.  849, 
7  L.  R.  A.  (N.  S.)  950,  9  Am.  & 
Eng.  Ann.  Cas.  535  and  note.  See 
cases  cited  in  notes  5.  6,  7. 

*'See  note  to  9  Am.  &  Eng.  ./\nn. 
Cas.  535  ;  Brvant  v.  Chicago,  St.  P.,  M. 
&  O.  Ry.  Co.,  53  Fed  997.  4  C.  C.  A. 
146;  Fitzgibbon  v.  Chicago  &c.  R.  Co., 


119  Iowa  261,  93  N.  W.  276.  One 
riding  on  a  bus  gratuitously  at  the 
driver's  invitation  is  a  passenger.  Pal- 
mer Transfer  Co.  v.  Smith,  137  Kv. 
319,  125  S.  W.  725,  136  Am.  St.  295. 
But  one  who  takes  passage  on  a 
freight  train  under  an  agreement  with 
the  conductor  to  render  services  for 
his  transportation  is  a  volunteer,  and 
assumes  the  risk.  St.  Louis  &c.  R. 
Co.  V.  Jones,  96  Ark.  558,  132  S.  W. 
636,  37  L.  R.  A.  (N.  S.)  418. 

**  Clark  V.  Colorado  &c.  R.  Co., 
165  Fed.  408,  19  L.  R.  A.  (N.  S.) 
988;  Chicago  &c.  R.  Co.  v.  Field,  7  Ind. 
App.  172,  34  N.  E.  406,  52  Am.  St. 
444;  Wilcox  v.  San  Antonio  &c.  R. 
Co.,  11  Tex.  Civ.  App.  487,  33  S.  W. 
379;  Kirk  v.  Seattle  El.  Co..  58 
Wash.  283,  108  Pac.  604,  31  L.  R.  A. 
(N.  S.)  991n.  But  the  carrier's  agent 
may  assent  to  one  riding  in  such  a 
place.  Parks  v.  St.  Louis  &c.  R.  Co., 
178  Mo.  108,  77  S.  W.  70,  101  Am. 
St.  425.  See  Pennsylvania  R.  Co.  v. 
Brooks,  57  Pa.  St.  339,  98  Am.  Dec. 
229.  One  riding  on  the  step  or  run- 
ning board  of  a  street  car,  is  not  a 
passenger,  unless  accepted  as  such. 
Lockwood  V.  Boston  Elevated  R.  Co., 
200  Mass  537,  86  N.  E.  934,  22  L.  R. 


CARRIERS  OF  PASSENGERS. 


295 


such.*^  Those  paying  fare  are  passengers,'"''  and  so  may  be  those 
who  have  boarded  the  wrong  conveyance  by  mistake.*^  One  rid- 
ing on  a  drover's  pass  is  a  passenger/^  for  there  is  a  considera- 
tion for  his  transportation  in  that  he  takes  care  of  the  stock,  and 
thus  to  a  degree  reheves  the  carrier  of  duties,  though  the  risk 
may  be  somewhat  Hmited,  as  to  him,  by  the  duties  which  he  un- 
dertakes and  the  character  of  vehicle  on  which  he  rides.*^  An 
employe  on  private  business,  traveling  on  a  pass,  is  a  passenger,^" 
but  not  usually  so  if  simply  traveling  to  or  from  work.^^  A 
street  car  employe,  who  rides  from  his  place  of  employment  to 
his  home  by  his  own  volition  and  not  by  the  direction  of  his  em- 
ployer, is  a  passenger,  though  he  pays  his  fare  in  coupons  issued 
by  the  company  as  a  part  of  his  wages/^    Those  pursuing  special 


A.  (N.  S.)  488;  Hogner  v.  Boston 
Elevated  R.  Co.,  198  Mass.  260,  84  N. 
E.  464,  15  L.  R.  A.  (N.  S.)  960,  and 
note. 

*^  Kirkpatrick  v.  Metropolitan  St. 
R.  Co.    (Ky.),   143   S.   W.  865. 

*"  Union  &c.  R.  Co.  v.  Nichols.  8 
Kans.  505,  12  Am.  Rep.  475 ;  McNeill 
V.  Durham  &  C.  R.  Co.,  135  N.  Car. 
682,  47  S.  E.  765,  67  L.  R.  A.  227; 
Pennsylvania  R.  Co.  v.  Price,  96  Pa. 
St.  256,  2  Ky.  L.  183;  Bricker  v, 
Pennsylvania  R.  Co.,  132  Pa.  St.  1, 
18  Atl.  983. 

"Cincinnati.  H.  &  I.  R.  Co.  v. 
Carper,  112  Ind.  26,  13  N.  E.  122, 
14  N.  E.  352,  2  Am.  St.  144,  3  Am. 
Negl.  Cases  186;  Lake  Shore  &  M. 
S.  R.  Co.  V.  Rozevizweig,  113  Pa.  St. 
519,  6  Atl.  545.  But  see  contra,  Rob- 
ertson V.  Boston  &  N.  St.  R.  Co., 
190  Mass.  108,  76  N.  E.  513,  3  L.  R. 
A.  (N.  S.)  588  and  note,  112  Am. 
St.  314. 

*^  Lake  Shore  &c.  R.  Co.  v.  Teeters, 
166  Ind.  335,  11  N.  E.  599,  5  L.  R. 
A.  (N.  S.)  425:  Hedrick  v.  Missouri 
Pac.  R.  Co.,  195  Mo.  104.  9Z  S.  W. 
268,  6  Am.  &  Eng.  Ann.  Cas.  793,  and 
note;  Otto  v.  Chicago.  B.  &  O-  R- 
Co.,  87  Nebr.  503,  127  N.  W.  857,  31 
L.  R.  A.  (N.  S.)  632  and  note,  138 
Am.  St.  496.  But  an  immigrant  who 
accompanies  his  stock  and  goods  to 
care   for   them   is   not   a   passenger 


when  sleeping  in  the  car  after  the 
destination  has  been  reached  and  the 
stock  unloaded,  and  his  goods  are 
fully  protected  in  the  car  and  sleep- 
ing accommodations  could  have  been 
obtamed  at  a  nearby  hotel.  Chicago. 
R.  L  &  P.  R.  Co.  V.  Thurlow,  178 
Fed.  894,  102  C.  C.  A.  128,  30  L.  R. 
A.    (N.   S.)    571n. 

*"  Missouri  Pac.  R.  Co.  v.  Tietken, 
49  Nebr.  130,  68  N.  W.  336,  59  Am. 
St.  526. 

'"Elliott  R.  R.  (2d  ed.),  §  1578a, 
and  cases  cited;  Whitney  v.  New 
York  R.  Co.,  102  Fed.  850.  43  C.  C.  A. 
19,  50  L.  R.  A.  615;  Ohio  &  Missis- 
sippi R.  Co.  V.  Muhling,  30  111.  9, 
81  Am.  Dec.  336. 

"Elliott  R.  R.  (2d  ed.).  §  1578a; 
Birmingham  R.  Light  &  Power  Co. 
V.  Sawyer,  156  Ala.  199.  47  So.  67.  19 
L.  R.  A.  (N.  S.)  717;  Kilduff  v. 
Boston  &c.  R.  Co.,  195  Mass.  307.  81 
N.  E.  191,  9  L.  R.  A.  (N.  S.)  873: 
Gilshannon  v.  Stony  Brook  &c.  R. 
Co.,  10  Cush.  (Mass.)  228;  Sander- 
son V.  Panther  Lumber  Co..  50  W. 
Va.  42.  40  S.  E.  368,  55  L.  R.  A.  90S, 
88  Am.   St.  841. 

^'Hebert  v.  Portland  R.  Co..  103 
Me.  315.  69  Atl.  266.  125  Am.  St.  297. 
13  Am.  &  Eng.  Ann.  Cas.  886.  anrl 
note.  See  also,  Enos  v.  Rhode  Island 
Suburban  R.  Co.,  28  R.  T.  291,  67 
Atl.  5,  12  L.  R.  A.  (N.  S.)  244. 


296  BAILMENTS. 

callings  on  trains,  as  railway  mail  clerks,^^  express  messengers/* 
and  in  some  jurisdictions  those  who  pay  for  the  privilege  of  selling 
popcorn,  fruit  and  the  like  on  trains,  or  keeping  a  bar  on  a  boat,^^ 
are  passengers,  though  it  is  held  that  news  agents  are  not.^® 
The  employes  of  a  sleeping  car  company,  though  not  passengers, 
are  entitled  to  due  care  for  their  protection,^^  but  liability  as  to 
them  may  be  contracted  against,^*  Where  a  company  simply 
furnishes  power  to  move  a  special  train,  as  a  circus  train,  those 
upon  the  circus  train  are  not  passengers.^^  Trespassers,^* 
tramps,^^  and  defrauders®^  are  not  passengers. 

As  a  general  rule,  one  who  goes  upon  a  train  or  conveyance  to 
attend  or  visit  a  passenger  is  not  held  to  be  a  passenger,"^  though 
there  is  a  duty  owing  to  him  by  the  carrier.^*  One  entering  a  train 

"Lindsey   v.    Pennsylvania    R.   Co.  ^'Robertson  v.  Old  Colony  R.  Co., 

26   App.    Cas.    (D.    C.)    503,   6   Am.  156  Mass.  525,  31  N.  E.  650,  i2  Am. 

&    Eng.    Ann.    Cas.    862;    Malott    v.     St.  482.  

Central   Trust  Co.,   168  Ind.   428,  79  •="  Elliott   R.   R.    (2d  ed.),   §    1581; 

N.  E.  369,  11  Am.  &  Eng.  Ann.  Cas.  Berry  v.   Missouri    Pac.   R.   Co.,   124 

879;  Barker  v.  Chicago.  P.  &  St.  L.  Mo.  223,  25  S.  W.  229;  Radley  v.  Co- 

R.  Co.,  243  111.  482,  90  N.  E.  1057,  134  lumbia  Southern  R.  Co.,  44  Ore.  332, 

Am.  St.  382.  75  Pac.  212. 

■^  Davis  V.   Chesapeake  &  Ohio  R.  *' Chicago,  B.  &  Q.  R.  Co.  v.  Mehl- 

Co.,    122   Ky.  528,  29  Ky.   L.   53,  92  sack,  131  111.  61,  22  N.  E.  812,  19  Am. 

S.  W.  339,  5  L.  R.  A.   (N.   S.)   458,  St.    17n;    Bricker   v.   Philadelphia   R. 

121  Am.  St.  481,  12  Am.  &  Eng.  Ann.  Co.,   132   Pa.   St.    1,    18  Atl.  983,    19 

Cas.  723,  and  note.  Contra,  Robinson  Am.    St.   585. 

V.  St.  Johnsbury  &  L.  C.  R.  Co.,  80  ""Higley  v.  Gilmer,  3  Mont.  90,  35 

Vt.  129,  66  Atl.  814,  9  L.  R.  A.   (N.  Am.    Rep.    450    (one    attempting    to 

S.)    1249;   Peterson  v.  Chicago  &  N.  "beat"  his  wav)  ;  Fitzmaurice  v.  New 

W.  R.  Co.,   119  Wis.  197,  96  N.  W.  York,  N.  H.  &  H.  R.  Co.,  192  Mass. 

532,  100  Am.   St.  879.  159,  78  N.  E.  418,  6  L.  R.  A.  (N.  S.) 

°^Yeomans  v.  Contra  Costa  Steam  1146,  116  Am.  St,  236,  7  Am.  &  Eng. 

N.  Co.,  44  Cal.  71 ;  Commonwealth  v.  Ann.  Cas.  586  (a  girl  who  fraudulently 

ermont    &c.    R.    Co.,    108    Mass.    7,  represents  herself  a  student  under  18, 

11   Am.  Rep.  301.  to    get    a    reduced    rate)  ;    Grahn    v. 

^  Smallwood    v.    Baltimore   &c.    R.  International  &c.  R.  Co.,  100  Tex.  27, 

Co.,  215  Pa.  St.  540,  64  At].  732,  7  93   S.  W.   104,  5  L.   R.  A.    (N.  S.) 

Am.  &  Eng.  Ann.  Cas.'S25r"anTno'te.  1025  and  note,  123  Am.  St.  767  (one 

^'Hughson  v.  Richmond  &c.  R.  Co.,  who    rides    by     stealth     and     secret 

2  App.  Cas.   (D.  C.)  98,  22  Wash.  L.  agreement   with   conductor). 

55 ;  and  see  Jones  v.  St.  Louis  South-  *"  Elliott    R.    R.,    §    1578;    Seattle, 

western  R.  Co.,  125  Mo.  666,  28  S.  W.  Pacific  Coast  Co.  v.  Jenkins,  150  Fed. 

883,  26  L.  R.  A.  718,  46  Am.  St.  514.  537,   10  Am.  &.Eng.   Ann.   Cas.   159, 

^Denver  &  R.  G.  R.  Co.  v.  Whan,  and   note;    Hill   v.  Louisville  &c.   R. 

39  Colo.  230,  89  Pac.  39.  11  L.  R.  A.  Co.,  124  Ga.  243,  52  S.  E.  651,  3  L.  R. 

(N.   S.)    432n,  12  Am.  &  Eng.  Ann.  A.    (N.  S.)   432;  Louisville  &  N.  R. 

Cas.  732;  Chicago,  R.  I.  &  P.  R.  Co.  Co.  v.  Wilson,  124  Ky.  846,  100  S.  W. 

V.  Hamler,  215  111.  525,  74  N.  E.  705,  290,  8  L.  R    A.    (N.  S.)    1020. 

1   L.   R.   A.    (N.   S.)    674n,   106  Am.  "Elliott   R.   R.    (2d   ed.),   §   1578; 

St.   187;   Russell  v.   Pittsburg  &c.  R.  Southern    R.    Co.    v.    Patterson,    148 

Co.,   157   Tnd.  305,  61   N.   E.  678,  87  Ala.  11.  41   So.  964.  121  Am.  St.  30. 

Am.   St.   214.  See  Pacific  Coast  Co.  v.  Jenkins,  ISO 


CARRIERS    OF    PASSENGERS. 


297 


on  private  business,  as  to  collect  a  debt  from  a  passenger,  is  held 
a  trespasser.^^  One  who  has  hailed  a  vehicle  with  the  intention 
of  boarding,  and  who  has  been  accepted  by  the  one  in  charge  of 
the  vehicle  stopping  it  to  receive  him,  is  a  passenger,  and  may 
recover  for  injuries  received  in  attempting  to  board  the  convey- 
ance, though  he  did  not  actually  enter.^®  A  safe  general  rule  is 
that  a  person  becomes  a  passenger,  when,  intending  to  take  pas^ 
sage,  he  enters  a  place  provided  for  the  reception  of  passengers, 
as  a  depot,  waiting-room,  or  the  like,  at  a  time  when  such  a 
place  is  open  for  the  reception  of  persons  intending  to  take  pas- 
sage on  the  vehicles  of  the  carrier,*^^  at  least,  if  he  indicates  such 
intention  in  some  manner  to  the  carrier's  agents.*^^  He  is  not  a 
passenger  when  merely  on  his  way  to  the  station,^''  unless  he  is 
riding  in  the  carrier's  vehicle.^**  It  is  not  necessary  that  fare  has 
been  prepaid,  if  there  is  an  intention  to  pay  it,'^^  and  persons  re- 


Fed.  537,  80  C.  C  A.  279,  10  L.  R.  A. 
(N.  S.)  969  and  note,  for  circum- 
stances under  which  a  vessel  should 
return  to  a  wharf  and  put  off  one 
who  has  come  on  board  to  visit  a 
passenger,  and  has  failed  to  leave 
the  boat  Ijefore  it  swung  away  from 
the  wharf. 

*'McElvane  v.  Central  of  Ga.  R. 
Co.,  170  Ala.  525,  54  So.  489,  34  L. 
R.  A.    (N.  S.)   715. 

™Brien  v.  Bennett,  8  C.  &  P.  724; 
Western  &  A.  R.  Co.  v.  Voils,  98 
Ga.  446,  26  S.  E.  483,  35  L.  R.  A. 
655 ;  Rogers  v.  Kennebec  Steamboat 
Co.,  86  Maine  261,  29  Atl.  1069,  25 
L.  R.  A.  491.  See  note  9  Am.  &  Eng. 
Ann.  Cas.  1104.  One  becomes  a  pas- 
senger when  motorman  has  re- 
sponded to  his  signal  to  stop  an  in- 
terurban  car.  Karr  v.  Milwaukee 
Light  &  Heat  &  Traction  Co.,  132 
Wis.  662,  113  N.  W.  62,  13  L.  R.  A. 
(N.  S.)  283  and  note,  122  Am.  St. 
1017.  In  case  of  a  street  car  one  is 
not  a  passenger  until  he  steps  on 
(Duchemin  v.  Boston  Elevated  R.  Co., 
186  Mass.  353,  71  N.  E.  780,  66  L. 
R.  A.  980,  104  Am.  St.  580,  1  Am.  & 
Eng.  Ann.  Cas.  603 ;  Lockwood  v. 
Boston  X'c.  Co.,  200  Mass.  537.  22  L. 
R.  A.  (N.  S.)  488).  or  when  he  gets 
on  a  plank  used  for  the  purpose  in 
order  to  step  on.  Messenger  v.  Valley 
City  St.  T.  &  I.  R.  Co.,  21  N.  Dak. 


82,  128  N.  W.  1023,  32  L.  R.  A.  (N. 
S.)   881. 

*'  See  cases  cited  under  note  37. 
One  with  a  round  trip  ticket  for 
passage  on  a  steamboat,  who  is  wait- 
ing at  the  steamer  company's  dock, 
is  a  passenger.  White  v.  Seattle,  E. 
&.  T.  Nav.  Co.,  36  Wash.  281.  78  Pac. 
909,  104  Am.  St.  948.  One  who  goes 
to  the  station  a  few  minutes  before 
train  time  to  leave  his  hand  baggage 
is  a  passenger,  although  he  intends  to 
go  out  again  on  personal  business 
before  his  train  arrives.  Metcalf  v. 
Yazoo  &  M.  V.  R.  Co.,  97  Miss.  455, 
52  So.  355,  28  L.  R.  A.  (X.  S.)  311, 
and  note.  See  Pere  Marquette  R.  Co. 
v.  Strange,  171  Ind.  160,  84  N.  E. 
819,  85  N.  E.  1026,  20  L.  R.  A.  (N. 
S.)    1041n. 

•^Dieckman  v.  Chicago  &  N.  W. 
R  Co.,  145  Iowa  250,  121  N.  W.  676, 
31  L.  R.  A.  (N.  S.)  338n,  139  Am. 
St.  420;  Atchison  &c.  R.  Co.  v.  Hnl- 
loway,  71  Kans.  1.  80  Pac.  31.  15  L. 
R.  A.  (N.  S.)  908n,  114  Am.  St. 
462. 

"Mitchell  v.  Augusta  &  A.  R.  Co., 
87  S.  Car.  375,  69  S.  E.  664,  31  L. 
R.  A.  CN.  S.)  442.  (As  one  125  yards 
from   station.") 

™Buffitt  v.  Troy  R.  Co..  40  N.  Y. 
168,  36  Barb.    (N.  Y.)   420. 

"One  who  has  paid  fare  to  a  cer- 
tain point  is  not  required  to  leave 


298 


EAILMEXTS. 


ceived  by  invitation  in  vehicles  not  ready  to  start  are  passengers.  ^^ 
The  passenger  does  not  lose  his  rights  as  such  by  temporary 
absence  from  the  conveyance,  but  if  the  absence  was  for  an  inci- 
dental purpose  and  not  necessary  to  the  transportation,  he  is  not 
considered  a  passenger  while  absent.'^  One  who  assists  the 
agent  of  the  carrier  in  an  emergency,  though  a  volunteer  in  this 
work,  may  still  be  a  passenger  ;'^  likewise,  one  who  leaves  a  train 
and  goes  to  the  relief  of  his  brother  who  was  injured  by  the  car- 
rier's servants.'^  A  child  with  its  parent,'^'^  or  other  person  car- 
ried free,  is  a  passenger,  and  the  duty  to  guard  one  carried  gratu- 
itousl}''  on  a  free  pass  is  the  same  as  the  duty  to  the  one  who  pays 
his  fare,'^  but  the  carrier  may  contract  against  liability  to  the  one 
carried  on  a  free  pass.'^^ 


§  270.  Duties  of  carrier  toward  passenger. — The  passen- 
ger carrier  must  generally  accept  without  discrimination  all  who 
present  themselves  properly  and  ask  transportation,'^  and  sell 


the  train,  but,  if  he  wishes  to  con- 
tinue, may  remain,  paying  fare  on 
demand.  Anderson  v.  Missouri  Pac. 
R.  Co.,  196  Mo.  442,  93  S.  W.  394, 
113  Am.  St.  748. 

''  Hannibal  &  St.  J.  R.  Co.  v.  Mar- 
tin, 111  111.  219.  But  one,  who,  with- 
out invitation,  and  contrary  to  cus- 
tom, goes  into  a  train  before  it  is 
made  up,  is  not  a  passenger.    Raines 

V  Chesapeake  &c.  R.  Co.,  68  W.  Va. 
694,  70  S.  E.  711. 

"Philadelphia  &  R.  R.  Co.  v. 
Young,  90  Fed.  709,  33  C  C.  A.  251 ; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Sattler, 
64  Nebr.  636,  90  N.  W.  649,  57  L. 
R.  A.  890,  97  Am.  St.  666;  Parsons 
V.  N.  Y.  Central  &c.  R.  Co.,  113  N. 
Y.  355.  21  N.  E.  145,  3  L.  R.  A.  683n, 
10  Am.  St.  450.  A  passenger  on  a 
crowded  street  car  does  not  cease  to 
be  such  by  momentarily  stepping  off 
to   allow  others  to  alight.  Tompkins 

V  Boston  Elevated  R.  Co..  201  Mass. 
114.  S7  N.  E.  488,  20  L.  R.  A.  (N. 
S.)   1063.  131  Am.  St.  392. 

'*McTntvre  R.  Co.  v.  Bolton.  43 
Ohio  St.  "224,  1  N.  E.  333,  54  Am. 
Rep.  803;  Lake  Shore  &  M.  S.  R.  Co. 
V.  Salzman,  52  Ohio  St.  558.  40  N.  E. 
891,  31  L.  R.  A.  261.  49  Am.  St.  745. 

^"Layne  v.  Chesapeake  &c.  R.  Co., 


68  W.  Va.  213,  69  S.  E.  700,  31  L. 
R.  A.   (N.  S.)   414. 

^'Ball  V.  Mobile  Light  and  Power 
Co.,  146  Ala.  309,  39  So.  584,  119  Am. 
St.  32,  9  Am.  &  Eng.  Ann.  Cas.  962; 
Southern  R.  Co.  v.  Lee,  30  Ky.  L. 
1360,  101  S.  W.  307,  10  L.  R.  A.  (N. 
S4  837. 

/  Ryckman  v.  Hamilton  &c.  R.  Co., 
10  Ont.  L.  R.  419,  4  Am.  &  Eng. 
Ann.  Cas.  1126;  Indianapolis  T.  & 
T.  Co.  V.  Lawson,  143  Fed.  834,  5 
L.  R.  A.  (N.  S.)  721n,  6  Am.  and 
Eng.  Ann.  Cas.  666;  Indianapolis  T. 
&  T.  Co.  V.  Klentschy.  167  Ind.  598, 
79  N.  E.  908,  10  Am.  &  Eng.  Ann. 
Cas.  869.  See  note  12  Am.  &  Eng. 
Ann.  Cas.  677;  Coggs  v.  Bernard,  1 
Smith's  Ld.  Cases  (8th  ed.)  369; 
Philadelphia  &c.  R.  Co.  v.  Derby,  14 
How.  (U.  S.)  468,  14  L.  ed.  291.  A 
police  officer  carried  free  under  an 
invalid  city  ordinance  is  a  passenger. 
Gabbert  v.  Hackett,  135  Wis.  86,  115 
N  W.  345,  14  L.  R.  A.  (N.  S.) 
1070. 

"See  cases  cited  in  note  77.  See 
§  286.  post. 

'"See  cases  cited  under  note  2; 
Meismer  v.  Detroit  &c.  R.  Co.,  154 
Mich.  545  118  N.  W.  14,  19  L.  R.  A. 
(N.  S.)  872,  129  Am.  St.  493. 


Carriers  of  passengers.  299 

accommodations  and  tickets  to  them  in  the  order  of  application. ®° 
However,  a  railroad  company  may  run  a  special  limited  for  those 
who  have  sleeping  car  accommodations,  and  require  the  purchase 
of  a  berth  before  carrying  a  passenger  in  it,  and  exclude  him  for 
failure  to  purchase  a  berth.^* 

We  have  seen  that  there  are  several  grounds  upon  which  pas- 
sengers may  be  rejected.  There  can  be  no  refusal  on  account  of 
color  or  race,  but  it  is  not  discrimination  to  provide  separate  ac- 
commodations for  colored  people,  in  the  absence  of  statute  pre- 
venting, by  carriers  engaged  either  in  interstate*-  or  intrastate 
commerce,®^  and  a  statute  compelling  such  separation  is  not  in- 
valid.** So  it  is  reasonable  to  provide  separate  accommodations 
for  women.*^  A  railroad  company  must  stop  at  a  flag  station 
when  signaled  to  receive  passengers  if  it  is  its  custom  to  stop 
trains  of  the  kind  signaled.***^  Having  accepted  one  as  a  passen- 
ger, it  is  the  duty  of  the  carrier  to  furnish  him  transportation 
according  to  contract,  to  take  him  on  the  proper  vehicle  for  which 
he  has  contracted,  and  to  furnish  him  equal  accommodations  v/ith 
other  passengers,  though  different  rates  may  be  charged  for  dif- 
fering degrees  of  accommodation,  and  every  contract  is  made 
subject  to  the  reasonable  regulations  of  the  carrier." 

§  271.  Carrier's  duty  as  to  accommodations. — The  carrier 
is  lield  to  a  very  high  degree  of  care  as  to  the  character  of  his 


'Where  a   purser   refused  to   sell  "Chilton  v.   St.  Louis  &c.  R.   Co., 

a  berth  to  a  person  who  applied,  but  114  Mo.  88,  21  S.  W.  457,  19  L.  R.  A. 

afterward    sold    berths    to  those    ap-  269;   Peck  v.   New  York  &c.  R.  Co., 

plying  later,  the  carrier  is  liable.  Pat-  70  N.  Y.  587. 

terson    v.    Old    Dominion    Steamship  *"  Southern    R.    Co.    v.    Wallis,    133 

Co..   140  N.   Car.  412,  53   S.   E.  224,  Ga.  553,  66   S.   E.  370,  30  L.   R.  A. 

5   L.   R.   A.    (N.   S.)    1012,   111   Am.  (N.  S.)   401n,   18  Am.  &  Eng.  Ann. 

^    /St.  848.  Cas.  67;  Williams  v.  Carolina  &c.  R. 

V       "Ames   V.    Southern    Pac.   R.   Co.,  Co..  144  N.  Car.  498.  57  S.  E.  216.  12 

141    CaL  ^8^_75__Pac.  810,  99  Am.  L.  R.  A.  (N.  S.)  191,  12  Am.  &  Eng. 

St.  98.                         '"  Ann.  Cas.  1000.  An  electric  car  must 

^Chiles  V.  Chesapeake  &c.  R.  Co.,  stop  at  a  regular  station  for  a  pas- 

218  U.   S.  71,  54  L.  ed.  936,  30  Sup.  senger   signaling,   and   it   is  not  suf- 

Ct.  667.   20   Am.   &   Eng.   Ann.   Cas.  ficient  to  stop  at  some  distance  past. 

980  and  note.  Christian  v.   Augusta  &c.   R.   Co..  87 

""See   note  20   Am.    &    Eng.    Ann.  S.  Car.   123,  69  S.   E.   17,  Ann.   Cas. 

Cas.  982.  1912B.  995. 

«"  State   V.   Patterson.   50   Fla.    127,  ^^  St.    Louis    A.    &    T.    R.    Co.    v. 

39  So.  398,  7  Am.  &  Eng.  Ann  Cas.  Mackie,  71  Tex.  491.  9  S.  W.  451,  1 

272.  L.  R.  A.  667,  10  Am.  St.  766. 


300  BAILMENTS. 

vehicles,  equipment,  and  appliances,^^  and  the  condition  of  his 
roadbed,  if  a  railroad  carrier,^^  and  must  use  modern  and  im- 
proved appliances,  the  rule  being  that  railroad  companies  are 
bound  to  the  most  exact  care  and  diligence,  not  only  in  the  man- 
agement of  trains  and  cars,  but  also  in  the  structure  and  care  of 
the  track,  and  in  all  the  subsidiary  arrangements  necessary  to  the 
safety  of  the  passengers.  While  the  law  demands  the  utmost 
care  for  the  safety  of  the  passengers,  it  does  not  require  railroad 
companies  to  exercise  all  the  care,  skill,  and  diligence  of  which 
the  human  mind  can  conceive,  nor  such  as  will  free  the  transpor- 
tation of  passengers  from  all  possible  peril.  They  are  not  re- 
quired, for  the  purpose  of  making  their  roads  perfectly  safe,  to 
incur  such  expense  as  would  make  their  business  wholly  imprac- 
ticable, and  drive  prudent  men  from  it.  They  are,  however,  with- 
out regard  to  their  pecuniary  ability  to  do  so,  required  to  pro- 
vide all  things  necessary  to  the  security  of  the  passengers  reason- 
ably consistent  with  their  business  and  appropriate  to  the  means 
of  conveyance  employed  by  them,  and  to  adopt  the  highest  degree 
of  practicable  care,  diligence  and  skill  that  is  consistent  with  the 
operating  of  their  roads,  and  that  will  not  render  their  use  im- 
practicable or  inefficient  for  the  intended  purposes  of  the  same.^** 
Reasonable  accommodations  must  be  provided  for  the  comfort 
of  passengers,  for  instance,  the  carrier  must  have  an  adequate 
corps  of  servants,^^  if  the  journey  is  of  requisite  length,  oppor- 
tunity to  procure  food  must  be  offered,^^  proper  retiring  places 
must  be  furnished,^^  a  day  coach  must  be  supplied  with  seats  suf- 

^ Elevated  R.  R.   (2d.  ed.)   §  1587;  Ann.  Cas.  IIZ;  Colorado  &c.  R.  Co. 

Taylor  v.   Pennsylvania  Co.,  50  Fed.  v.    McGeorge,   46  Colo.    15,    102   Pac. 

755;  Hanson  V.  Mansfield  R.  &Transp.  747,  133  Am.  St.  43;  Wallace  v.  Wil- 

Co.,  38  La.   x\nn.   Ill,   58  Am.   Rep.  mington  &c.  R.  Co..  8  Houst.   (Del.) 

162.  529,  18  Atl.  818;  Adams  v.  Louisville 

** Elliott   R.   R.    (2d   ed.),   §    1586;  &c.  R.   Co..   134  Ky.  620.   121   S.  W. 

Taylor  v.   Grand   Trunk  &c.   R.   Co.,  419,  135  Am.  St.  425 ;  Kuhlen  v.  Bos- 

48  N.  H.  304,  2  Am.  Rep.  229;  Penn-  ton  &c.  R.  Co.,  193  Mass.  341,  79  N. ' 

svlvania   R.    Co.   v.    MacKinney,    124  E.  815,   118  Am.   St. .  516. 

Pa.   St.  462,   17  Atl.   14.  2  L.   R.  A.  "'  Murrav  v.  Lehigh  Valley  R.  Co., 

820n,  10  Am.  St.  601,  Z1  Am.  &  Eng.  (id  Conn.   512,  34  Atl.  560,  32  L.  R. 

R.  Cas.  153.  A.  539. 

'"Elliott    R.    R.    (2d    ed.)    §    1588:  "'Story  Bailments    (9th  ed.),§597; 
Louisville    &c.    R.    Co.    v.    Jones,    83  Elliott  R.  R.,  §  1588a ;  Dodge  v.  Bos- 
Ala.  yi6,  3  So.  902;  Irwin  v.  Louis-  ton  &c    Co.,  148  Mass.  207.  19  N.  E. 
ville  &c.  R.  Co.,  161  Ala.  489,  50  So.  Zn.  2  L.  R.  A.  83.  12  Am.  St.  541. 
62,  135  Am.  St.  153,  18  Am.  &  Eng.  »*Wood  v.  Georgia  R.  Co.,  84  Ga. 


CARRIERS    OF    PASSENGERS. 


301 


ficient  for  the  ordinary  number  of  passengers,"*  heat  and  Hght 
must  be  furnished,"^  and,  in  short,  all  accommodations  reason- 
ably necessary  for  the  welfare  and  comfort  of  the  passengers 
must  be  provided.^*'  So,  the  carrier  is  held  to  the  utmost  prac- 
ticable care  in  the  operation  of  his  train  or  other  vehicle,  and 
must  employ  only  competent  servants  in  this  work."'  He  must 
maintain  his  stations  and  depots  in  such  a  condition  as  to  be  rea- 
sonably safe  for  the  use  by  passengers,  and  must  stop  trains  a 
reasonable  length  of  time  for  passengers  to  get  on,  but  in  this 
respect  is  held  only  to  ordinary  care  and  not  to  the  high  degree 
of  care  necessary  to  keep  safe  his  means  of  carriage  itself."^  He 
must  maintain  reasonably  safe  places  for  the  discharge  of  pas- 
sengers from  cars,®^  and  suitable  appliances  for  boarding  and 
alighting/ 


363,  10  S.  E.  967;  Henderson  v.  Gal- 
veston H.  &  S.  A.  R.  Co.  (Tex.  Civ. 
App.),  42  S.  \V.   1030. 

"*  Chesapeake  &c.  R.  Co.  v.  Aus- 
tin, 137  Ky.611, 126  S.  W.  144, 136  Am. 
St.  307  and  note.  If  conveyance  is 
obstructed  by  standing-  cars,  the  car- 
rier is  liable  for  exposing  passengers 
to  the  elements.  Louisville  &  N. 
R.  Co.  V.  Daugherty,  Z2  Ky.  L.  1392, 
108  S.  W.  336,  15  L.  R.  A.  (N.  S.) 
740.  Not  if  delay  is  caused  by  act  of 
God.  Cormack  v.  New  York,  New 
Haven  &  Hartford  R.  Co.,  196  N.  Y. 
442,  90  N.  E.  56,  24  L.  R.  A.  (N. 
S.)  1209n ;  Prospert  v.  Rhode  Island 
Suburban  R.  Co.,  28  R.  I.  367,  67 
Atl.  522,  11  L.  R.  A.   (N.  S.)   1142n. 

•^Hastings  v.  Northern  Pac.  R. 
Co.,  53  Fed.  224;  Atlantic  Coast  Line 
R.  Co.  V.  Powell,  127  Ga.  805,  56  S. 
E.  1006,  9  L.  R.  A.  (N.  S.)  769;  9 
Am.  &  Eng.  Ann.  Cas.  553  and  note; 
Louisville  &  N.  R.  Co.  v.  Scalf,  Zl 
Ky.  L.  721,  110  S.  W.  862,  26  L.  R. 
A.   (N.   S.)   263. 

•"Elliott  R.  R.  (2d  ed.).  §§  1588, 
1589.  Chesapeake  &  O.  R.  Co.  v. 
Austin,  137  Ky.  611,  126  S.  W.  144, 
136  Am.   St.  307  and  note. 

•'Elliott  R.  R.  f2d  ed.).  §  1589. 
White  V.  Fitchburg  R.  Co.,  136  Mass. 
321 ;  McElroy  v.  Nashua  &  Lowell  R. 
Co..  4  Cush.  (Mass.)  400.  50  Am. 
Dec.  794 ;  Warren  v.  Fitchburg  R.  Co., 
8  Allen   (Mass.)   227,  85  Am.  Dec. 


700n;  Eaton  v.  Boston  &  Lowell  R. 
Co.,  11  Allen  (Mass.)  500,  87  Am. 
Dec.  730.  See  cases  cited  in  note  1. 

•^Elliott  R.  R.  (2d  ed.),  §  1590; 
Louisville,  N.  A.  &  C.  R.  Co.  v. 
Lucas,  119  Ind.  583,  21  N.  E.  968,  6 
L.  R.  A.  193;  McDonald  v.  Chicago 
&c.  R.  Co.,  26  Iowa  124.  96  Am.  Dec. 
114n;  Chesapeake  &  O.  R.  Co.  v. 
Austin,  137  Ky.  611,  126  S.  W.  144, 
136  Am.  St.  307  rnd  note;  Bennett 
V.  Louisville  &  N.  R.  Co  102  U.  S. 
577,  26  L.  ed.  235.  Carrier  must  suf- 
ficiently light  its  station  at  night  for 
reasonable  time  before  and  after  ar- 
rival and  departure  of  trains,  to  pro- 
vide reasonable  safety.  Abbott  v. 
Oregon  R.  &  N.  Co.,  46  Ore.  549, 
80  Pac.  1012,  1  L.  R.  A.  (N.  S.)  851n, 
114  Am.  St.  885,  7  Am.  &  Eng.  Ann- 
Cas.  961. 

«' Mobile  Light  &  R.  Co.  v.  Walsh. 
146  Ala.  290,  40  So.  559.  9  Am.  & 
Eng.  Ann.  Cas.  853;  Atchison  &c. 
Co.  v.  McElroy.  76  Kans.  271.  91 
Pac.  785,  13  L.  R.  A.  (N.  S.)  620n. 
123  Am.  St.  134;  Powell  v.  Phila- 
delphia &c.  R.  Co..  220  Pa.  638,  70 
Atl.  268,  20  L.  R.  A.    (N.  S.)    1019. 

^  Traphagen  v.  Erie  R.  Co.,  lit  N. 
J.  L.  759,  64  Atl.  1072,  €J  Atl.  753, 
9  Am.  &  Eng.  Ann.  Cas.  964,  See. 
Hotenbrink  v.  Boston  El.  R.  Co.,  211 
Mass.  n,  97  N.  E.  624,  39  L.  R.  A. 
(N.  S.)  419,  and  note. 


302 


BAILMEXTS. 


(/§  272.  Duty  to  protect  passengers  from  third  persons. — 
The  carrier  must  use  a  high  degree  of  care  to  protect  passengers 
from  injury  by  the  neghgence  or  wilful  misconduct  of  third  per- 
sons,^ or  other  passengers,"  as  intoxicated  passengers,*  or  strik- 
ers,^ or  the  acts  of  his  employes  outside  of  the  scope  of  their  em- 
ployment f  must  protect  female  passengers  from  insult  or  humili- 
ation, as,  where  a  conductor  called  a  white  woman  a  negro,  the 
carrier  was  held  liable,'  and  is  liable  for  causing  the  unjustified 
arrest  of  a  passenger,^  but  is  under  no  duty  to  resist  an  officer  in 
arresting  a  passenger.^    The  carrier  owes  the  same  duty  to  the 


"Irwin  V.  Louisville  &  Nashville 
R.  Co.,  161  Ala.  489,  SO  So.  62,  135 
Am.  St.  153,  18  Am.  &  Eng.  Ann. 
Cas.  773  and  note ;  St.  Louis  &c.  R. 
Co.  V.  Shaw,  9  Ark.  IS,  125  S.  W. 
654,  140  Am.  St.  98;  note,  97  Am. 
St.    527. 

*  Montgomery  Transp.  Co.  v. 
Whatley,  152  Ala.  101,  44  So.  538, 
126  Am.  St.  17;  Farrier  v.  Colorado 
Springs  Rapid  Transit  Co.,  42  Colo. 
331.  95  Pac.  294,  126  Am.  St.  158; 
Brown  v.  Chicago.  R.  L  Co.,  139  Fed. 
972,  72  C.  C.  A.  20,  2  L.  R.  A.  (N. 
S.)  105.  See  Sure  v.  Milwaukee, 
Electric  Rv.  &  Light  Co.,  148  Wis.  1, 
133  N.  W."  1098,  37  L.  R.  A.  (N.  S.) 
724.  See  also,  Louisville  &c.  R.  Co. 
V.  Brewer,  147  Ky.  166,  143  S.  W. 
1014,  39  L.  R.  A.  (N.  S.)  647  and 
note. 

*HilIman  v.  Georgia  R.  &  Banking 
Co..  126  Ga.  814,  56  S.  E.  68,  £  Am. 
&  Eng.  Ann.  Cas.  222;  Spangler  v. 
St.  Joseph  &c.  R.  Co.,  68  Kans.  46, 
74  Pac.  607,  63  L.  R.  A.  634,  104  Am. 
St.  391 ;  Kline  v.  Alilwaukee  Electric 
R.  Co.,  146  Wis.  134.  131  N.  W.  427, 
Ann  Cas.   1912C.  276  and  note. 

''Fewings  v.  Mendenhall,  88  Minn. 
336,  93  N.  W.  127,  60  L.  R.  A.  601.  97 
Am.  St.  519  and  note. 

*  Citizens'  St.  R.  Co.  v.  Clark,  33 
Ind.  App.  190,  71  N.  E.  S3,  104  Am. 
St.  249;  Havne  v.  Union  St.  R.  Co., 
189  Mass.  551,  76  N.  E.  219,  3  L.  R.  A. 
(N.  S.)  605,  109  Am.  St.  655;  O'Brien 
V.  St.  Louis  Transit  Co.,  185  Mo. 
263,  84  S.  W.  939.  105  Am.  St.  592. 
The  carrier  is  liable  for  rape  of  a 
passenger  by  an  employe.  Garvik  v. 
Burlineton  Cedar  Rapids  &  N.  Ry. 
Co.,  131  Iowa  415,  108  N.  W.  327, 


117  Am.  St.  432.  See,  Neville  v. 
Southern  R.  Co.  (Tenn.),  146  S.  W. 
846,  40  L.  R.  A.  (N.  S.)  995,  and 
very  full  note  on  liability  of  a  car- 
rier for  the  wilful  torts  of  his  serv- 
ants to  pasengers,  39  L.  R.  A.  (N. 
S.)   999-1088. 

'  Louisville  &c.  R.  Co.  v.  Grundy,  12 
Ky.  L.  293;  Lucy  v.  Chicago  G.  W. 
R.  Co.,  64  Minn.  7,  65  N.  W.  944, 
31  L.  R.  A.  551.  Liability  for  humili- 
ation of  white  woman  passenger  by 
conductor  calhng  her  a  negro.  May 
V.  Shreveport  Transp.  Co.,  127  La. 
420,  53  So.  671,  32  L.  R.  A.  (N.  S.) 
206.  Liability  for  insulting  act  of  em- 
ploye in  compelhng  white  person  to 
ride  in  car  for  negroes.  Southern  R. 
Co.  V.  Thurman,  121  Ky.  716,  90  S. 
W.  240,  28  Ky.  L.  699,  2  L.  R.  A. 
(N.  S.)  1108;  Louisville  &c.  R.  Co. 
V.  Ritchel,  148  Ky.  701,  147  S.  W.  411. 
As  to  insuU,  see  Illinois  Cent.  R.  Co. 
V.  Fleming,  148  Ky.  473,  146  S.  W. 
1110. 

®  Where  brakeman  and  station 
agent  vinjustifiedly  arrested  a  pas- 
senger for  bringing  a  dog  on  train 
(Hull  V.  Boston  &c.  R.  Co.,  210  Mass. 
159,  96  N.  E.  58,  36  L.  R.  A.  (N. 
S.)  406),  or  where  carrier's  agent 
arrested  passenger  on  false  charge  of 
larceny,  Moore  v.  Louisiana  &c.  R. 
Co.  (.\rk.),  137  S.  W.  826,  34  L.  R. 
A.  (N.  S.)  299;  Schmidt  v.  New  Or- 
leans R.  Co.,  116  La.  311.  40  So.  714, 
7  L.  R.  A.  (N.  S.)  162.  See.  New 
York  &c.  R.  Co.  V.  Waldron,  116  Md. 
441,  82  Atl.  709,  39  L.  R.  A.  (N.  S.) 
502. 

"Bowden  v.  Atlantic  Coast  Line  R. 
Co.,  144  N.  Car.  28,  56  S.  E.  558,  12 
Am.  &  Eng.  Ann.  Cas.  783. 


'CARRIERS    OF    PASSENGERS.  3O3 

colored  passenger  for  protection  as  to  the  white/*  If  one  is  taken 
sick  on  the  conveyance,  the  carrier  owes  him  care  commensurate 
to  his  needs  in  view  of  the  facihties,"  and  if  one  unattended  and 
so  intoxicated  as  to  be  unable  to  take  care  of  himself  is  accepted 
as  a  passenger,  it  is  held  that  he  must  be  given  such  special  care  as 
his  condition  requires."  The  carrier  must  use  care  to  protect 
passengers  from  contagious  disease.^^  It  has  been  held,  however, 
that  there  is  no  duty  on  the  part  of  the  carrier's  agents  to  assist 
persons  to  or  from  a  train  who  are  able  to  take  care  of  them- 
selves.^* 

§  273.  Violation  of  the  carrier's  duties  tov^^ard  passenger 
considered  as  breach  of  contract,  or  as  tort. — The  duties 
above  considered  are  imposed  upon  the  passenger  carrier  by  law 
under  the  implied  contract  entered  into  with  every  passenger. 
However,  since  in  no  case  is  the  carrier  of  passengers  an  absolute 
insurer  that  he  will  protect  the  passenger,  but  he  contracts  to  use 
only  a  certain  degree  of  care,  in  most  respects  a  very  high  degree 
of  care,  he  is  liable  only  for  negligence  in  failing  to  use  the  care 
demanded,  and  the  question  of  the  violation  of  these  duties  be- 
comes one  of  negligence  and  largely  one  of  tort,  so  that  in 
the  present  article  we  shall  content  ourselves  with  setting  out 
these  duties  generally,  while  into  the  question  of  personal  in- 
juries suffered  by  passengers  we  shall  not  at  all  enter,  the  object 
of  this  article  being  to  consider  the  passenger  carrier  as  such  in 
his  contract  relation.  It  is  well  settled,  however,  that  an  action 
ex  contractu  may  be  brought  in  a  proper  case  against  a  passenger 
carrier  for  personal  injuries  sustained  or  for  the  wrongful  ejec- 
tion from  the  carrier's  conveyance,  and  a  passenger  suing  for 
negligence  may  sue  ex  contractu,  or  ex  delicto.^® 

"Richmond  &  D.  R.  Co.  v.  Jeffer-  ^^Bogard's  Admr.  v.   Illinois  Cent, 

son,  89  Ga.  554,   16  S.  E.  69,  17  L.  R.  Co.,  144  Ky.  649,   139  S.  W.  855, 

R.  A.  571,  32  Am.  St.  87n.  ^6  L.   R.   A.    (N   S.)    2,2,7  and   note. 

"  Central  of  Ga.  R.  Co.  v.  Madden,  "  St.  Louis,  I.   M.  &  S.   R.   Co.  v. 

135  Ga.  205,  69  S.  E.  165,  31  L.  R.  A.  Green,  85  Ark.  117,  107  S.  W.  168,  14 

(N.  S.)  813  and  note,  21  Am.  &  Eng.  L.  R.  A.   (N.  S.)   1148;  Illinois  Cent. 

Ann.  Cas.  1077  and  note.  R.  Co.  v.  Cruse,  123  Kv.  463,  96  S.  W. 

^  Price  V.  St.  Louis,  I.  M.  &  S.  R.  821,  8  L.  R.  A.   (N.  S.)  299;  Illinois 

Co.,  75  Ark.  479,  88  S.  W.  575,   112  Cent.  R.  Co.  v.  Harper,  83  Miss.  560, 

Am.  St.  79;  Benson  v.  Tacoma  R.  &  35  So.  746,  64  L.  R.  A.  283.  102  Am. 

Power   Co.,    51    Wash.   216,   98    Pac.  St.  469. 

605,  130  Am.  St.  1096.  "*  Aiken      v.     Southern      R.      Co., 


304 


BAILMENTS. 


§  274.  'Carrier's  rules  and  regulations. — The  carrier  has 
the  power  to  make  reasonable  rules  and  regulations  for  the  con- 
duct of  its  business.  These  enter  into  its  contract,  and  the  pas- 
senger is  bound  to  comply  with  such  as  are  not  unreasonable,  and 
not  contrary  to  law\^^  The  question  of  reasonableness  is  usually 
one  of  law.^^  It  is  sufficient  if  these  regulations  are  brought  to 
the  passenger's  notice  by  posting  so  that  they  may  reasonably  ad- 
vise themselves,  these  regulations  not  being  such  a  part  of  a  con- 
tract that  actual  notice  must  be  shown,  but  rather  depending  upon 
the  carrier's  power  to  control  his  business.^®  It  is  competent  to 
exact  payment  of  fare  in  advance,  and  on  demand  of  an  agent  so 
empowered,  the  passenger  must  pay,  or  show  a  ticket  indicating 
payment,  and  payment  must  be  in  legal  tender  if  so  required.^^ 
A  tender  of  more  than  the  amount,  under  the  usages  of  business 
as  to  making  change,  is  sufficient,  but  a  tender  of  an  amount  so 
great  as  to  be  out  of  reasonable  approximation  is  insufficient.^* 


118  Ga.  118,  44  S.  E.  828,  98  Am. 
St.  107,  and  cases  cited  in  note; 
Busch  V.  Interborough  Rapid  Transit 
Co.,  187  N.  Y.  388,  80  N.  E.  197,  10 
Am.  &  Eng.  Ann.  Cas.  460. 

^'Elliott  R.  R.  (2d  ed.),  §  1576.  See 
cases  cited  under  note  87.  Southern 
R.  Co.  V.  Watson,  110  Ga.  681,  36  S. 
E.  209;  Pennsylvania  R.  Co.  v.  Parry, 
55  N.  J.  L.  551,  27  Atl.  914,  22  L. 
R.  A.  251,  39  Am.  St.  654;  Eddy  v. 
Rider,  79  Tex.  53,  15  S.  W.  113; 
Norfolk  &  W.  R.  Co.  v.  Wysor,  82 
Va.  250,  26  Am.  &  Eng.  R.  Cas.  234. 

"Central  of  Ga.  R.  Co.  v.  Motes, 
117  Ga.  923,  43  S.  E.  990,  62  L.  R. 
A.  507,  97  Am.  St.  223  (holding  rea- 
sonable a  parol  regulation  forbidding 
sleeping  in  waiting  rooms). 

"EHiott  R.  R.  (2d  ed.),  §  1576; 
Johnson  v.  Concord  R.  Corp.  46  N. 
H.  213.  88  Am.  Dec.  199;  Whitesell 
V.  Crane,  8  Watts,  &  S.  (Pa.)  369; 
Trotlinger  v.  East  Tennessee  R.  Co., 
11  Lea  (Tenn.)  533;  Louisville  & 
N.  R.  Co.  V.  Turner,  100  Tenn.  213, 
47  S.  W.  223.  43  L.  R.  A.  140;  Gulf, 
C.  &  S.  F.  R.  Co.  V.  Moody  (Tex. 
Civ.  App.).  30  S.  W.  574. 

"Elliott  R.  R.  (2d  ed.),  §  1594; 
Pittsburg.  C.  &.  St.  L.  R.  Co.  v.  Van- 
dyne,  57  Ind.  576,  26  Am.  Rep.  68; 
Van  Dusan  v.  Grand  Trunk  R.  Co., 


97  Mich.  439,  56  N.  W.  848,  37  Am. 
St.  354n;  Mahoney  v.  Detroit  City 
R.  Co.,  93  Mich.  612.  53  N.  W.  793, 
18  L.  R.  A.  335,  32  Am.  St.  528; 
Jersey  City  &c.  R.  Co.  v.  Morgan, 
52  N.  J.  L.  60,  18  Atl.  904;  Peabody 
V.  Oregon,  R.  &  Nav.  Co.,  21  Ore. 
121,  26  Pac.  1053,  12  L.  R.  A.  823 
and  note.  A  coin  is  not  deprived  of 
its  legal  tender  qualities  merely  by 
becoming  worn  in  circulation,  and 
a  carrier  must  receive  such  a  coin 
in  payment  of  fare  if  not  appreciably 
diminished  in  weight  and  it  retains 
the  appearance  of  a  coin  duly  issued 
from  the  mint.  Cincinnati  Northern 
Tr.  Co.  V.  Rosnagle,  84  Ohio  St.  310, 
95  N.  E.  884.  Ann.  Cas.  1912C.  639, 
35  L.  R.  A.   (N.  S.)   1030n. 

'"'Burge  v.  Georgia,  R.  &  El.  Co., 
133  Ga.  423.  65  S.  E.  879 ;  Barker  v. 
Central  Park  &c.  R.  Co..  151  N.  Y. 
237,  45  N.  E.  550.  56  Am.  St.  626, 
35  L.  R.  A.  489  (holding  tender  of 
five  dollar  bill  for  five  cent  fare  not 
reasonable)  ;  Funderburg  v.  Augusta 
&  A.  R.  Co..  81  S.  Car.  141.  61  S.  E. 
1075,  21  L.  R.  A.  (N.  S.)  868;  Knox- 
ville  Transp.  Co.  v.  Wilkerson,  117 
Tenn.  482.  99  S.  W.  992,  9  L.  R.  A. 
(N.  S.)  579,  10  Am.  &  Eng.  Ann. 
Cas.  641  and  note.  The  company  is 
liable  if  the  conductor  does  not  re- 


'CARRIERS    OF    PASSENGERS.  3O5 

If,  by  mistake,  the  conductor  accepts  a  smaller  amount  than  re- 
quired, it  has  been  held  that  the  passenger  must  correct  the  mis- 
take on  demand,  or  suffer  ejection.^^  It  has  also  been  held  to 
be  the  duty  of  a  passenger,  when  a  conductor  approaches,  to 
tender  him  tickets  or  money,  and  notify  him  of  his  destination." 
If  the  passenger  gets  on  the  wrong  train  without  fault  of  the 
carrier,  but  by  his  own  mistake,  he  is  not  entitled  to  be  carried 
to  the  next  station  without  payment  of  fare."^  If  opportunity  to 
purchase  a  ticket  has  been  offered,  the  carrier  may  charge  a  sum 
in  addition  to  the  price  of  a  ticket,  not  greater  than  the  maximum 
allowed  by  law,  where  the  passenger  has  not  purchased  a  ticket 
before  boarding,^*  and  if  the  passenger  has  simply  come  to  the 
station  without  time  in  which  to  buy  a  ticket  he  cannot  say  that 
he  did  not  have  reasonable  opportunity,  but  must  pay  additional 
fare."  It  has  been  held  that  a  passenger  may  refuse  to  pay  his 
fare  until  his  baggage  is  checked.^* 

§  275.  Ejection  for  failure  to  comply  with  regulations  or 
because  of  faulty  ticket. — It  is  proper  for  the  carrier  to  eject 
or  exclude  from  a  train  or  other  vehicle  one  who  has  failed  to 
comply  with  reasonable  rules  and  regulations,  including  those 
above  discussed.^'     Disorderly  or  obnoxious  persons   may  be 

turn  the  change.     Gillespie  v.  Brooklyn  205,  40  N.  E.  20;  jMissouri,  K.  &  T. 

&c.  R.  Co.,  178  N.  Y.  347,  70  N.  E.  R.  Co.  v.  Dawson,  10  Tex.  Civ.  App. 

857,  102  Am.  St.  503.  A  battered  coin  19,  29  S.  W.  1106. 

is  a  good  tender.     Cincinnati  North-  ''^  Elliott    R.    R.    (2d    ed.),    §    200; 

ern     Transp.     Co.    v.     Rosnagle,    84  McGowen    v.    Morgan's    &c.    R.    Co., 

Ohio  St.  310,  95  N.  E.  884,  35  L.  R.  41  La.  Ann.  732,  6  So.  606,  5  L.  R.  A. 

A.    (N.   S.)    1030n,  Ann.  Cas.   1912C.  817,   17  Am.   St.  415;   Zagelmeyer  v. 

639.  A  street  railway  may  require  a  Cincinnati  &c.  R.  Co.,  102  Mich.  214, 

passenger   to   put   nickels    in   an   au-  60  N.  W.  346,  47  Am.  St.  514;  Am- 

tomatic    collector.    Martin    v.    Rhode  mons    v.    Southern    R.    Co.,    138    N. 

Island    &c.    Co.,    12    R.    I.    162,    78  Car.  555,  51  S.  E.  127,  3  Am.  &  Eng. 

Atl.   548,  Z2  L.   R.   A.    (N.   S.)   695,  Ann.    Cas.    886    and    note;    Mills    v. 

Ann.   Cas.   1912C.   1283.  Missouri  &c.  R.  Co.,  94  Tex.  242,  59 

^Curtis  V.    Louisville  &c.   R.    Co.,  S.  W.  874,  55  L.  R.  A.  497. 

94  Ky.  573,  15  Ky.  L.  351.  23  S.  W.  ^Lake  Erie  &  W.  R.  Co.  v.  Mavo. 

363.  21   L.   R.  A.   649;   Wardwell  v.  4    Ind.    App.    413,    30    N.    E     1106; 

Chicago  &c.  R.  Co.,  46  Minn.  514,  49  Union  Pac.  R.  Co.  v.  Wolf,  54  Kans. 

N.  W.  206,  13  L.  R.  A.  596,  24  Am.  592,  38  Pac.  786. 

St.    246.  =^Tarr   v.    Oregon    Short    Line    R. 

"^  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Co..   14  Idaho   192,  93   Pac.  957,  125 

Smith.   110  Tenn.   197,  75  S.  W.  711,  Am.  St.   151. 

100  Am.   St.  799.  "Elliott  R.   R.    (2d  ed.),   §§   1575- 

**  Columbus,    C.    &    Ind.    Cent.    R.  1577a.   See  caees  cited  under  notes  16, 

Co.  V.  Powell.  40  Ind.  Z1 ;  New  York  §  274  and  note  87,  §  270. 
&  N.  E.  R.  Co.  V.  Feely,   163  Mass. 
Bailments — 20 


,3o6 


BAILMENTS. 


ejected  or  excluded,-®  One  may  be  expelled  who  refuses  to  pay 
his  fare  or  show  a  ticket,  but  reasonable  opportunity  to  do  so 
must  be  given  first.^^  If  the  ticket  offered  does  not  entitle  the 
holder  to  transportation  at  the  time  and  on  the  train  on  which 
presented,  he  may,  in  a  proper  case,  be  expelled,^"  but  if  before 
steps  are  taken  toward  the  ejection  of  a  person  for  noncompli- 
ance with  a  rule  as  to  paying  fare  or  showing  a  ticket,  he  pays 
the  fare,  he  cannot  be  ejected,^^  and  if  the  passenger  tenders  the 
correct  amount,  and  the  conductor  demands  more,  the  passenger 
may  recover  damages,  if  ejected.^^ 

One  who  has  paid  full  fare  may  by  misconduct  render  himself 
liable  to  expulsion.^^  If  a  parent  refuses  to  pay  fare  for  a  child, 
both  parent  and  child  may  be  put  off,  though  the  parent  has  paid 
for  himself.^'*  If  the  conductor  mistakenly  expels  a  passenger, 
the  carrier  is  liable.^^  After  something  has  been  done  to  stop  a 
train  in  order  to  expel  one,  it  is  then  too  late  for  him  to  obtain 
the  right  to  be  carried  by  his  payment  of  the  fare.^^    Where  one 


'^See  cases  cited  in  notes  25  to  28, 
§  267. 

"^  Missouri,  K.  &  T.  R.  Co.  v. 
Smith,  152  Fed.  608.  81  C.  C.  A.  598, 
10  Am.  &  Eng.  Ann  Cas.  939  and 
note;  Southern  R.  Co.  v.  Fleming, 
128  Ga.  241,  57  S  E.  481,  10  Am.  & 
Eng.  Ann.  Cas.  921 ;  Anderson  v. 
Louisville  &  N.  R.  Co.,  134  Ky.  343, 
120  S.  W.  298,  20  Am.  &  Eng.  Ann. 
Cas.  920  and  note;  Shelton  v.  Erie 
R.  Co.,  12>  N.  J.  L.  558,  66  Atl.  403, 
9  L.  R.  A.  (N.  S.)  727,  118  Am.  St. 
704. 

*"  Pennington  v.  Illinois  Cent.  R. 
Co.,  252  111.  584,  97  N.  E.  289,  Zl  L. 
R.  A.  (N.  S.)  983;  Terre  Haute,  A. 
&  St.  L.  R.  Co.  V.  Vanatta,  21  111.  188, 
74  Am.  Dec.  96 ;  Post  v.  Chicago  &  N. 
W.  R.  Co.,  14Nebr.  110. 15  N.  W.  225, 
45  Am.  Rep.  100;  Melody  v.  Great 
Northern  R.  Co.,  25  S.  Dak.  606,  127 
N.  W.  543,  30  L.  R.  A.  (N.  S.)  568; 
Virginia  &  Southwestern  R.  Co.  v. 
Hill.  105  Va.  729.  54  S.  E.  872,  6 
L.  R.  A.  (N.  S.)  899. 

*' Elliott  R.  R.  (2d  ed.),  §  1637; 
Note  to  Am.  &  Eng.  Ann.  Cas.  939; 
Georgia  S.  &  F.  R.  Co.  v.  Asmore, 
88  Ga.  529,  15  S.  E.  \Z,  16  L.  R.  A. 
53n;  Indianapolis  St.  R.  Co.  v.  Wil- 
son. 161  Ind.  153,  66  N.  E.  950,  67 
N.  E.  993,  100  Am.  St.  261. 


^'  Curtis  V.  Louisville  City  R.  Co., 
94  Kv.  573,  15  Kv.  L.  351,  23  S.  W. 
363,  21  L.  R.  A.  649;  Adams  v. 
Union  R.  Co.,  21  R.  I.  134,  42  Atl. 
515,  44  L.  R.  A.  273. 

=^  Gould  V.  Chicago,  M.  &  St.  P. 
R.  Co..  5  McCrary  (U.  S.)  502,  18 
Fed.  155. 

"Philadelphia,  W.  &  B.  R.  Co.  v. 
Hoeflick,  62  Md.  300,  50  Am.  Rep. 
223;  Braun  v.  Northern  Pac.  R.  Co., 
79  Minn.  404,  82  N.  W.  675,  984,  49 
L.  R.  A.  319,  79  Am.  St.  497. 

^Atlanta  Consol.  St.  R.  Qo.  v. 
Keeny,  99  Ga.  266,  25  S.  E.  629.  33 
L.  R.  A.  824;  Georgia  R.  &  Banking 
Co.  V.  Eskew,  86  Ga.  641,  12  S.  E. 
1061,  22  Am.  St.  490. 

"' :\Iissouri,  K.  &  T.  R.  Co.  v. 
Smith,  152  Fed.  608,  10  Am.  &  Eng. 
Ann.  Cas.  939  and  note;  Garrison  v. 
United  Railwavs  &c.  Co.,  97  Md.  347, 
55  Atl.  371,  99  Am.  St.  452;  MuUins 
V.  Illinois  Central  R.  Co.,  93  IMiss. 
184.  46  So.  529.  136  Am.  St.  542; 
Behr  v.  Erie  R.  Co.,  69  App.  Div.  (N. 
Y.)  416,  74  N.  Y.  S.  1007;  Kirk  v. 
Seattle  Elec.  Co.,  58  Wash.  283,  108 
Pac.  604,  1  L.  R.  A.  (N.  S.)  991  and 
note.  But  see  Holt  v.  Hannibal  &c. 
R.  Co..  174  Mo.  524,  74  S.  W^  631, 
affg.  87  ]Mo.  App.  203. 


CARRIERS  OF  PASSENGERS.  307 

conductor  fails  to  give  the  passenger  a  receipt  as  evidence  of 
payment  of  fare,  and  a  second  conductor  expels  him  for  the  Iacl< 
of  such  receipt,  it  is  held  that  the  carrier  is  liable,  even  though 
the  second  conductor  was  justified. ^^  If  the  passenger  has  made 
a  mistake  as  to  his  ticket,  he  must  pay  to  prevent  expulsion. ^^ 
Under  some  holdings,  if  the  ticket  agent  has  made  the  mistake 
in  furnishing  the  ticket,  and  the  passenger  cannot  reasonably  be 
charged  vi^ith  knowledge  of  such  mistake,  he  may  rely  upon  the 
agent's  representations,  and  cannot  be  expelled  lawfully."^  If 
the  passenger  has  paid  a  portion  of  the  fare  he  has  a  right  to  its 
return  before  he  can  be  expelled.'*" 

One  ejected  from  a  train  must  not  be  put  off  in  a  dangerous 
manner,  or  at  a  dangerous  place,  and  unnecessar}''  force  must  not 
be  used,  and  this  rule  has  been  incorporated  into  the  statutes  of 
many  states.*^  If  expulsion  is  necessary,  reasonable  and  ordinary 
care  must  be  used,  and  it  has  been  held  that  one  must  be  put  off 
at  a  station.*" 

§  276.  Carrier's  right  to  compensation. — Every  contract 
rests  upon  a  consideration,  and  the  carrier  of  passengers  as  a  con- 
sideration for  his  services  has  a  right  to  a  reasonable  compen- 
sation.*^    In  the  case  of  the  most  important  carriers  today,  the 

'■Scofield  V.  Pennsylvania  Co.,  112  (Tex.),  144  S.  W.  1126,  39  L.  R.  A. 

Fed.  855,  SO  C.  C.  A.  553,  56  L.  R.  (N.  S.)  512. 

A.  224;   Lake   Erie  &  W.   R.   Co.  v.  *°Burnham  v.  Grand  Trunk  R.  Co., 

Fix.  88  Ind.  381,  45   Am.  Rep.  464;  63    Maine    298,    18    Am.    Rep.    220; 

Appleby  v.   St.   Paul  City  R.  Co.,  54  Wardwell   v.    Chicago,    M.    &    St.    P. 

Minn.    169,   55   N.   W.   1117,  40  Am.  R.  Co.,  46  Minn.  514.  49  N.  W.  206, 

St.  308.  13   L.    R.   A.    596,   24   Am.    St.   246; 

"'Haggerty    v.    Flint    &    P.    M.    R.  Braun   v.    Northern    Pac.   R.   Co.,   79 

Co.,  59  Mich.  366,  26  N.  W.  639,  60  Minn.    404,    82    N.    W.    675,   984,    49 

Am.  Rep.  301.  L.  R.  A.  319,  79  Am.  St.  497. 

'"McDonald  v.   Central   R.   Co.,  72  *^  Elliott  R.  R.,  §  1637;  Doggett  v. 

N.  J.  L.  280.  62  Atl.  405,  2  L.  R.  A.  Chicago,   B.    &    I.    R.    Co..    134   Iowa 

(N.  S.)  505,  111  Am.  St.  672;  Contra,  690,  112  N.  W.  171,  13  *L.  R.  A.  (N. 

Shelton  v.   Erie  R.   Co..  73  N.  J.   L.  S.)    364n ;    Louisville    &c.    R.    Co.    v. 

558.  9  Am.   &   Eng.   Ann.    Cas.   883;  Cottengim,  31  Kv    L    871,  104  S    W. 

Memphis   St.   R.   Co.   v.   Graves,    110  280,  13  L.  R.  A'  CN    S)  624-   State 

Tenn.  232,  75  S.  W.  729,  100  Am.  St.  v.   Kinnev,   34  Minn.  311,  25  N.   W. 

803;  Olson  v.  Northern  P.  R.  Co.,  49  705:  Wright  v.  ITnioo  R.  Co.    21   R 

Wash.  626,  18  L.  R.  A.  CN.  S.)  209.  T.   554,  45   Atl.   548;   Texas  &  P.  R.' 

But  the  company  is  not  bound  by  a  Co.  v.  James,  82  Tex.  306,  18  S.  W. 

ticket    agent's    representations    made  589.  15  L.  R.  A.  347. 

after  a  ticket  is  sold.     Pennington  v.  *^For   cases    arising    under   certain 

Til.  Cent.  R.  Co..  252  Til.  584   07  N.  of  these  statutes,  see  6  Cyc.  561 

E.  289,  37  L.  R.  A.  CN.  S.)  Q83.  And  *^ Johnson  v.  Pensacola  ^c.  R.  Co, 

see,   Atchison   &c.   R.   Co.   v.   Lucas  16  Fla.  623,  26  Am.  Rep.  731 ;  Spof- 


308  BAILMENTS. 

amount  of  fare  is  regulated  by  statute,  and  if  such  regulation  is 
reasonable  and  does  not  compel  carriage  at  such  a  low  rate  as  to 
be  confiscation  of  property,  or  the  taking  of  property  without 
just  compensation  or  due  process  of  law,  it  is  valid/*  The  rate 
may  be  fixed  by  usage,*^  in  the  absence  of  statute,  or  by  contract 
between  the  passenger  and  the  carrier.  In  the  case  of  an  inter- 
urban  or  street  railway,  the  rate  may  be  fixed  by  a  contract  be- 
tween the  railway  company  and  the  city,  and  if  such  a  contract 
violates  no  law  and  is  not  contrary  to  public  policy,  it  is  binding 
between  the  parties,  until  the  state  interferes  to  modify  the 
rates.*®  If  there  is  a  contract  with  a  city  that  the  rate  of  fare 
may  not  be  changed  without  consent  of  both  parties,  it  is  not  a 
change  of  the  rate  where  a  single  fare  is  five  cents,  to  discontinue 
selling  six-ride  tickets  for  twenty-five  cents,  for  "rate  of  fare" 
means  the  unit  or  basic  price,  on  which  the  total  charge  is  based, 
in  this  case  the  rate  for  a  single  ride.*^  The  carrier  has  no  lien 
upon  the  passenger  for  a  fare,  which  is  a  debt,  and  no  right  to 
detain  him  for  its  nonpayment.*® 

§277.  The  ticket  as  a  contract. — A  ticket  is  in  many  re- 
spects similar  to  the  receipt  or  bill  of  lading  given  by  the  carrier 
of  goods.  It  is  a  receipt  in  that  it  is  evidence  that  the  passenger 
has  paid  the  fare  demanded,  from  a  place  named  therein  to  an- 
other place.*^    Fare  is  "the  price  of  passage,  or  the  sum  paid  or 

ford  V.  Boston  &c.  R.  Co.,  128  Mass.  crating  at  a  loss,  it  may  be  relieved 

326;    McDuffee    v.    Portland    &c.    R.  from  the  2-cent  a  mile  fare  imposed 

Co,  52  N    H.  430,   13  Am.  Rep.  12.  by    statute.    Philadelphia    &    Reading 

"St.  Louis  &  S.  F.  R.  Co.  v.  Gill,  R.  Co.  v.  Phila.  County,  228  Pa.  St. 

54  Ark.  101.  15  S.  W.  18,  11  L.  R.  A.  505,  11  Atl.  892. 

452,   afifd.    156   U.    S.   649,   39   L.   ed.  '"Spofford   v.   Boston  &  Maine  R. 

567.  15  Sup.  Ct.  484;  Commonwealth  Co.,  128  Mass.  326. 

V.  Interstate  Consol.   St.  R.   Co.,   187  **  Manitowoc  v.   Manitowoc  &c.  R. 

I^Iass.  436.  73   N.   E.   530,   11   L.   R.  Co.,  145  Wis.  13,  129  N.  W.  925,  14 

A.  (N.  S.)  973n.  2  Am.  &  Eng.  Ann.  Am.   St.   1056. 

Cas.   419.   note  9  Am.  &  Eng.   Ann.  "Philadelphia  v.   Phila.   Rapid  Tr. 

Cas.   1130;    Stone  v.   Farmers'   Loan  Co.,  228  Pa.   St.  325.  11  Atl.  501,  21 

&c    Co.,  116  U.  S.  307.  29  L.  ed.  636,  Am.  &  Eng.  Ann.  Cas.  87. 

6  Sup    Ct.  334.  388.  1191,  23  Am.  &  *"  Lynch  v.  Metropolitan  El.  R.  Co., 

Eng.    R.     Cas.    577;     Georgia    R.    &  90  N.  Y.  11,  43  Am.  Rep.  141. 

■Ranking    Co.    v.    Smith,    128    U.    S.  '"Indianapolis   St.   R.   Co.   v.   Wil- 

174   0  Sup.  Ct.  47.  32  L.  ed.  377,  35  son,   161   Ind.   153.  66  N.  E.  950,  67 

Am.  &  Eng.  R.  Cas.  511.  Where  rates  N.    E.   993.   100   Am.    St.   260,   citing 

as    to    a    particular    carrier   are   not  many  cases ;    Quimby  v.   Vanderbilt. 

compensatory,  and  the  carrier  is  op-  17   N.   Y.    306,   72   Am.    Dec.   469; 


'CARRIERS    OF    PASSENGERS.  3OO 

to  be  paid  for  carrying  the  passenger."""'^  The  ticket  is  evidence 
'that  a  contract  has  been  entered  into,"^  but  the  contract  is  one 
implied  by  law  except  as  it  is  expressed  in  the  ticket,  and  parol 
evidence  has  often  been  held  admissible  to  prove  the  terms  of  the 
contract  entered  into  between  the  carrier's  agent  and  the  passen- 
ger, and  the  representations  made  by  the  agent/'  Yet  the  terms 
of  the  contract,  or  certain  conditions  which  form  a  part  of  the 
contract,  are  often  printed  on  the  ticket,  and,  in  such  cases,  it 
seems  that  the  better  rule  is  that  a  passenger  has  no  right  to  rely 
upon  representations  of  an  agent  contrary  to  its  express  condi- 
tions.^^ A  ticket  is  not  negotiable  like  commercial  paper,  though 
it  is  transferable,  unless  otherwise  provided,  and  a  bona  fide  pur- 
chaser of  a  stolen  or  fraudulently  obtained  ticket  does  not  thereby 
get  title. ^*  The  purchaser  of  a  through  ticket  is  entitled  to  travel 
by  the  usual  route,  and  not  by  another  way  owned  by  the  same 
company.^^  A  ticket  for  traveling  in  one  direction  is  not  good 
for  passage  in  the  opposite  direction.^^  That  a  ticket  has  been 
issued  for  passage  between  two  points  does  not  necessarily  imply 
that  all  the  company's  passenger  trains  stop  at  both  stations, 

O'Rourke  v.  Citizens'  St.  R.  Co.,  103  Ames  v.   Southern   Pac.   R.  Co.,   141 

Tenn.  124,  52  S.  W.  872,  46  L.  R.  A.  Cal.  728,  75  Pac.  310,  99  Am.  St.  98; 

614  Walker    v.    Price,    62    Kans.    327,    62 

=»  Chase  v.  New  York  Cent.  R.  Co.,  Pac.   1001,  84  Am.   St.  392;   McClure 

26  N.  Y.  523.  v.   Phila.  &c.   R.   Co.,  34   Md.   532,  6 

"It  is  held  that  a  ticket  is  only  evi-  Am.  Rep.  345;  Pennington  v.  Phila. 
dence  of  the  contract  and  not  the  &c.  R.  Co.,  62  Md.  95 ;  Boice  v.  Hud- 
contract  itself.  Aiken  v.  Southern  son  River  R.  Co.,  61  Barb.  (N.  Y.) 
R.  Co.,  118  Ga.  118.  44  S.  E.  828,  62  611. 

L.   R.  A.   666,  98  Am.   St.   107;   In-  "Frank  v.  Ingalls,  41  Ohio  St.  560, 

dianapolis  St.   R.   Co.  v.  Wilson,  161  21  Am.  &  Eng.  R.  Cas.  277;   Levin- 

Ind.  153,  66  N.  E.  950,  Q  N.  E.  993,  son  v.  Texas  &c.  R.  Co.,  17  Tex.  Civ. 

100  Am.    St.  261,   and   cases  cited.  App.  617,  43  S.  W.  901. 

'=  Louisville  &  Nashville   R.   Co.  v.  "^^  Milroy   v.   Chicago,   M.   &   St.    P. 

Scott,   141   Ky.   538,    133   S.   W.  800,  R.  Co.,  98  lowa  188,  67  N.  W.  276; 

34  L.   R.  A.    (N.  S.)    206;  Hayes  v.  Bennett   v.    New   York   Cent.   &c.    R. 

Wabash   R.   Co.,    163   Mich.    174,   128  Co.,  69  N.  Y.  594,  25  Am.  Rep.  250. 

N.  W.  217,  31  L.  R.  A.   (N.  S.)   229  But  where  the  carrier  has  two  routes 

and    note;    Illinois    Cent.    R.    Co.    v.  and  the  passenger  does  not  know  of 

Harper,  83  Miss.  560,  35  So.  764,  64  the  rule  that  she  must  go  by  direct 

L.  R.  A.  283,  102  Am.  St.  469 ;  Penn-  route,    and    where    the    former    con- 

sylvania   Co.    v.   Loftis,   12   Ohio    St.  ductor  and  the  ticket  agent  told  her 

288,  74   N.   E.    179,   106  Am.   St.  597,  she   was   on    the   right    route,    she   is 

3   Am.   &   Eng.   Ann.    Cas.   3;    Smith  not  bound  by  the  rule.   Illinois   Cent. 

V.   Southern   R.   Co.,  88   S.   Car.  421,  R.    Co.   v.    Harper.   %2>   Miss.    560.  35 

70  S.  E.   1057,  34  L.  R.  A.    (N.   S.)  So.  764,  64  L.  R.  A.  283,  102  Am.  St. 

708.     See    cases    cited    in    note    51,  469. 

§  277.  "*  Ohio  &  M.  R.  Co.  v.  Swarthout. 

^''Elliott   R.   R.    (2d    ed.),   §    1593;  (H  Ind.  567,  ZZ  Am.  Rep.   104;  Die- 


3IO  BAILMENTS. 

and  it  is  the  passenger's  duty  to  ascertain  whether  a  certain  train 
stops  before  he  takes  passage. ^^ 

§  278.  Conclusiveness  of  ticket. — The  cases  are  decidedly 
in  conflict  on  this  question.  It  has  been  shown  that  many  cases 
hold  that  oral  evidence  is  admissible  to  show  representations  of 
the  agent  which  entered  into  the  real  contract,  but  that  others 
hold  that  as  between  a  conductor  and  passenger  the  ticket  is  con- 
clusive for  the  time  being.  It  seems  that  the  weight  of  recent 
authority  would  uphold  the  following  statements,  although  there 
are  opposite  holdings.  If  a  ticket  is  in  form  a  mere  check  or 
token,  valid  on  its  face,  obtained  from  an  authorized  agent,  and 
the  passenger  is  not  at  fault,  he  cannot  be  ejected  because  the 
ticket  does  not  comply  with  some  unknown  regulation  of  the 
carrier.^^  Where  a  ticket  is  not  valid  on  its  face,  the  passenger 
has  a  right  of  action  against  the  carrier  in  breach  of  contract 
for  selling  him  such  invalid  ticket,  but  as  between  him  and  the 
conductor,  his  proper  course  is  to  pay  fare  or  he  must  suffer  ex- 
pulsion.^* It  is  said  that  the  reason  for  this  is  the  impossibility 
of  operating  railways  in  any  other  manner  with  a  due  regard  to 
the  safety  and  convenience  of  the  public,  and  the  proper  security 
of  the  company  in  collecting  fares.*^"  On  the  other  hand,  it  is 
very  frequently  the  case  that  a  passenger  on  a  train  does  not  carry 
with  him  sufficient  money  to  pay  fare  when  he  has  already  pur- 

trich  V.  Pennsylvania  R.  Co.,  71   Pa.  ed.    71,   12    Sup.    Ct.   356;   Dissenting 

St.  432,    10   Am.    Rep.  711.    Compare  opinion,   Indianapolis   St.   R.   v.   Wil- 

Illinois    Cent.    R.    Co.   v.    Harper,   83  son,    161    Ind.    153,  66  N.   E.  950,  67 

Miss.   560,  35   So.   764,  64   L.   R.  A.  N.  E.  993,  100  Am.  St.  261. 

283,  102  Am.  St.  469.                       -  "°  Elliott   R.    R.,    §    1594,   and   cases 

"Ohio  &  M.  R.  Co.  V.  Swarthout,  cited;   Kiley  v.  Chicago  City  R.   Co., 

67  Ind.  567,  Zl  Am.  -Rep.   104 ;   Chi-  189  111.  384,  59  N.  E.  794,  52  L.  R.  A. 

cago,  St.  L.  &  P.  R.  Co.  v.  Bills,  104  626,   82   Am.    St.    410;    Illinois    Cent. 

Ind.  13.  3  N.  E.  611;  Logan  v.  Han-  R.   Co.  v.  Fleming,   148  Ky.  473,   146 

nibal   &   St.   J.  R.    Co,.   11   Mo.  663;  S.W.  1110;    Frederick   v.    Marquetto, 

Dietrich  v.    Pennsylvania   R.   Co.,   71  H.  &  O.  R.  Co.,  Zl  Mich.  342,  9  L. 

Pa.  St.  432,  10  Am.  Rep.  711.  But  see  R.  A.   132n,  26  Am.  Rep.  531;   Shel- 

Illinois    Cent.    R.    Co.   v.    Harper,  83  ton  v.  Erie  R.  Co.,  72>  N.  J.  L.  558, 

Miss   560.   35   So.   764,  64   L.    R.   A.  66  Atl.  403,  118  Am.  St.  704,  9  Am. 

283,  102  Am.  St.  469.  &    Eng.    Ann.    Cas.    883;    McKav    v. 

'*  Elliott  R.  R..  §   1594a;  Jefferson-  Ohio  River  R.  Co..  34  W.  Va.  65,  11 

ville  R.  Co.  v.  Rogers,  28  Ind.  1,  92  S.  E.  IZl,  9  L.  R.  A.  132.  26  Am.  St. 

Am.    Dec.    276;    Hufford    v.    Grand  913.  44  Am.  &  Eng.  R.  Cas.  395. 

Rapids  &c.  R.  Co.,  53  Mich.   118,  48  ""  Pouilin  v.  Canadian  Pac.  R.  Co., 

N.  W.  580;  New  York  &c.  R.  Co.  v.  52  Fed.  197,  3  C.  C.  A.  23,  17  L.  R. 

Winter's  Admr.,  143  U,  S.  60,  36  L.  A.  800. 


CARRIERS    OF    PASSENGERS.  3II 

chased  what  he  behevcs  to  be  a  sufficient  ticket,  and  he  may  be 
put  to  great  hardship  because  of  ejection,  and  mistai<es  on  the 
part  of  ticket  agents  are  not  infrequent,  and  many  courts,  moved 
by  these  considerations,  hold  that,  especially  if  the  ticket  is  made 
apparently  invalid  by  punching  or  stamping,  or  other  fault  of  the 
ticket  agent,  and  the  passenger  has  not  been  at  fault,  the  con- 
ductor must  heed  a  reasonable  explanation,  and  not  expel  the 
passenger,  and  it  must  be  said  that  this  rule  has  strong  reasons 
for  its  support,  though  its  working  would  present  some  difficulties 
to  the  carrier."^  It  is  held  that  as  to  limitation  of  liability  the 
passenger  is  not  bound  by  conditions  printed  on  the  back  of  the 
ticket  which  he  did  not  know  of  and  to  which  his  attention  was 
not  directed.^-  But  since  any  limitation  of  liability  must  be  sup- 
ported by  consideration,  usually  a  reduced  fare,^^  it  is  held  that 
the  passenger  who  pays  a  reduced  fare  has  sufficient  notice  that 
the  carrier's  liability  may  have  been  restricted  by  the  ticket.®* 
Where  a  ticket  is  of  doubtful  import  or  ambiguous,  it  is  con- 
strued most  strongly  against  the  carrier.^^ 

§  279.  Loss  of  ticket. — Since  a  ticket  is  generally  the  only 
evidence  to  the  conductor  of  the  passenger's  rights,  or  at  least 
the  best  evidence,  he  must  produce  it  whenever  called  upon,  in 
order  to  prevent  impositions  upon  the  carrier,  and  if  he  has  no 

"Georgia    R.    &    Banking    Co.    v  see  note  to  Melody  v.  Great  North- 

Doughertv,  86  Ga.  744,  12  S.  E.  747,  ern  R.   Co.,  25  S.   Dak.  606,   127   N. 

"22  Am.   St.  499;   Cleveland,  C.   C.  &  W.  543,  Ann.  Cas.   1912C.  IZl. 

St.    L.    R.    Co.    V.    Beckett,    11    Ind.  *=  Little  Rock  &c.  R.  Co.  v.  Record, 

App.  547,  39  N.  E.  429;  Indianapolis  1^  Ark.   125,  85  S.  W.  421,  109  Am. 

St.   R.    Co.   V.   Wilson.   161   Ind.    153,  St.  67;  Hutchens  v.  Pennsylvania  R. 

66  N.  E.  950,  67  N.  E.  993,  100  Am.  Co.,  181  N.  Y.  186,  11  N.  E.  972,  100 

St.    261,    2    L.    R.    A.    (N.    S.)    695.  Am.  St.  537. 

See   Cherry  v.    Chicago   &c.   R.   Co.,  *"  Southern  R.  Co.  v.  De  Laussure, 

191  Mo.  489,  90  S.  \V.  381,  109  Am.  116  Ga.  53,  42  S.  E.  479;  Bullock  v. 

St.  830.   For   instance  of  humiliation  Delaware,  L.  &  W.  R.  Co.,  60  N.  J. 

see   111.    Cent.     R.    Co.    v.     Fleming  L.  24,  36  Atl.  in,  Z7  L.  R.  A.  417; 

(Kv.),    146    S.    W.    1110.    See    cases  Watson   v.   Louisville  &    N.    R.   Co., 

cited    under    note    39,    §  275.      See  104  Tenn.  194,  56  S.  W.  1024,  49  L. 

cases  cited  in  note  9,  §  285.     For  a  R.  A.  454. 

review  of  the  recent  cases  as  to  the  **  Elliott  v.    Southern    Pac.   R.   Co., 

right  of  the  carrier  to  eject   a  pas-  145  Cal.  441,  79  Pac.  420,  68  L.  R.  A. 

senger      holding      a      ticket     invalid  393;    Watson   v.   Louisville  &   N.   R. 

through  the  carrier's  fault,  and  show-  Co..   104  Tenn.   194,  56   S.   W.   1024, 

ing   that   the    weight   of    recent    au-  49  L.  R.  A.  454. 

thority     holds     that     the     passenger  '"  Ann     Arbor     R.     Co.     v.     Amos 

may   recover   damages   for   ejection,  (Ohio),  97  N.  E.  978. 


312  BAILMENTS.  > 

ticket,  it  makes  no  difference  that  he  has  lost,  mislaid  or  forgot- 
ten one,  and,  if  he  cannot  produce  it,  he  cannot  show  by  parol  that 
he  had  one  or  purchased  one,®^  and  must  pay  fare  or  suffer  ex- 
pulsion,^^ though  if  lost  in  the  conveyance,  a  reasonable  time 
must  be  given  to  find  it.^*  A  regulation  that  a  passenger  must 
surrender  his  ticket  is  reasonable,  and  if  a  check  or  some  evidence 
of  his  right  to  be  on  the  train  would  be  given  him  in  return,  for 
failure  to  surrender  it  he  may  be  expelled.^^  So  if  the  passenger 
has  paid  cash  fare,  and  has  been  given  a  train  ticket  or  rebate 
ticket,  he  must  produce  this  when  demanded.'^"  Though  where  a 
ticket  is  so  imperfect  in  appearance  that  a  conductor  is  not  justi- 
fied in  considering  it  evidence  of  the  payment  of  fare,  he  may 
refuse  to  accept  it  in  lieu  of  fare,  yet  where  a  ticket  is  in  fact 
good,  and  merely  soiled  or  changed  in  its  general  appearance,  as 
where  the  color  had  faded  because  of  water,  and  the  passenger 
explains  such  conditions  satisfactorily,  the  carrier  is  liable  for 
wrongful  expulsion,  and  the  rule,  in  many  jurisdictions  at  least, 
is  that  if  the  ticket  is  only  apparently  bad,  the  conductor  must 
heed  the  reasonable  explanations  of  the  passenger.^^ 

§  280.     Stop-over  privileges. — A  through  ticket  does  not 
give  stop-over  privileges,  unless  it  is  specially  provided  in  the 

*  Downs  V.  New  York  &c.  R  Co.,  Louisville  &c.  R.  Co.  v.  Maybin,  66 
36  Conn.  287,  4  Am.  Rep.  11 ;  Harp  Miss.  83 ;  Robson  v.  New  York  Cent. 
V.  Southern  R.  Co.,  119  Ga.  927,  47  R.  Co.,  21  Hun  (N.  Y.)  387;  Louis- 
S.  E.  206,  100  Am.  St.  212;  Chicago  ville  &c.  R.  Co.  v.  Fleming,  14  Lea 
&  Alton  R.  Co.  V.  Willard,  31  111.  (Tenn.)  128,  18  Am.  &  Eng.  R.  Cas. 
App.  435 ;  Frederick  v.  Marquette  &c.  347 ;  International  &c.  R.  Co.  v. 
R.   Co.,  Zl  Mich.   342,  26  Am.   Rep.  Wilkes,  68  Tex.  617. 

531;   Monnier  v.   New  York  Central  *"  Havens  v.   Hartford  &  N.  H.  R. 

&c.  R.  Co.,  175  N.  Y.  281,  67  N.  E.  Co.,  28   Conn.  69;   White  v.   Evans- 

569,  62  L.  R.  A.  357,  96  Am.  St.  619.  ville  &c.  R.  Co.,  133  Ind.  480,  2>Z  N. 

Compare,   Cherrv  v.   Chicago  &c.   R.  E.   273;    State  v.   Thompson,   20   N. 

Co.,  191  Mo.  489,  90  S.  W.  381,  2  L.  H.  250. 

R.  A.  (N.  S.)  695,  109  Am.  St.  830;  "'^  Louisville,  N.  A.  &  C.  R.  Co.  v. 

*"Harp  V.  Southern  R.  Co.,  119  Ga.  Goben,   15   Ind.   App.    123,  42   N.   E. 

927,  47  S.  E.  206,  100  Am.  St.  212  j  1116.  43  N.  E.  890. 

Shelton  v.  Erie  R.  Co.,  IZ  N.  J.  L.  "  Chicago  &  E.  I.  R.  Co.  v.  Conley, 

558,  (£  Atl.  403.  9  L.  R.  A.   (N.  S.)  6  Ind.  App.  9,  32  N.  E.  96,  865;  Illi- 

727,    118   Am.    St.    704;    Monnier   v.  nois    Cent.    R.    Co.    v.    Gortikov,   90 

New  York  &c.  R.  Co.,  175  N.  Y.  281,  Miss.  787,  45   So.  363,   14  L.   R.  A. 

67  N.  E.  569,  62  L.  R.  A.  357,  96  Am.  (N.    S.)    464n,    122    Am.    St.    324; 

St   619.  Smith  v.  Southern  R.  Co.,  88  S.  Car. 

*  Maples  v.  New  York  &c.  R.  Co.,  421,  70  S.  E.  1057,  34  L.  R.  A.  (N. 
38  Conn.  557,  9  Am.  Rep.  434;  South  S.)  708. 

Carolina  R.  Co.  v.  Nix,  68  Ga.  572; 


CARRIERS   OF    PASSENGERS.  3I3 

ticket."*  Where  an  authorized  agent  has  misled  a  passenger  as 
to  stop-over  privileges,  or  has  agreed  to  give  them  to  him,  the 
carrier  may  be  Hable  for  refusing  to  allow  them,  or  for  collecting 
additional  fare  to  carry  the  passenger  to  his  destination."  In 
the  case  of  through  tickets  sold  by  the  first  carrier  over  connect- 
ing lines  as  well  as  his  own,  the  passenger  is  not  required  to  travel 
continuously  over  all  the  lines  but  is  required  to  travel  continu- 
ously over  any  one  of  the  particular  roads  after  he  has  begun 
his  journey  on  that  road,^*  and  if  there  is  a  time  for  the  begin- 
ning of  his  journey  over  any  connecting  carrier's  route,  he  must 
begin  the  journey  with  that  carrier  before  the  expiration  of  the 
time  limit. '^^  In  other  respects  his  situation  as  to  each  of  the 
carriers  is  practically  the  same  as  if  he  had  purchased  a  separate 
ticket  from  each  of  them,  and  he  does  not  need  to  make  a  con- 
tinuous journey  over  the  whole  route.  A  railroad  company  sell- 
ing a  through  ticket  may  by  express  or  implied  contract  make 
itself  liable  for  the  safe  carriage  of  a  passenger  over  the  entire 
route,  but  the  mere  sale  of  such  a  ticket  does  not  of  itself  show 
such  a  contract,  and  the  presumption  from  such  sale  is  that  the 
selling  carrier  is  the  agent  of  connecting  carriers.'^  Such  tickets 
are  assignable  if  there  are  not  stipulations  to  the  contrary,^^  but 

'^  Roberts  v.  Koehler,  30  Fed.  94;  R.  A.  (N.  S.)  695.  109  Am.  St.  830; 

Keeley   v.   Boston   &   Maine   R.   Co.,  Brian  v.  Oregon  Short  Line  R.  Co., 

67   Maine   163,  24  Am.  Rep.   19  and  40  Mont.  109,  105  Pac.  489,  25  L.  R. 

note;  Cheney  v.  Boston  &c.  R.  Co.,  A.  (N.  S.)  459n,  20  Am.  &  Eng.  Ann. 

11   Mete.    (Mass.)    121,  45  Am.  Dec.  Cas.  311  and  note;  Auerbach  v.  New 

190  and  note;  Coleman  v.  New  York  York  Cent.  R.  Co.,  89  N.  Y.  281,  42 

&  N.  H.  R.  Co.,  106  Mass.  160  •  Penn-  Am.  Rep.  290,  6  Am.  &  Eng.  R.  Cas. 

sylvania   R.   Co.   v.   Parry,   55   N.   J.  334. 

L.  551,  27  Atl.  914,  22  L.  R.  A.  251,  '^  Pennsylvania  R.  Co.  v.  Hine,  41 

39  Am.  St.  654;  Louisville  &  N.  R.  Ohio  St.  276;   Gulf,  C.   &  S.   F.   R. 

Co.    V.    Klyman,    108    Tenn.    304,    67  Co.  v.  Looney,  85  Tex.  158,  19  S.  W. 

S.  W.  472,  56  L.  R.  A.  769,  91  Am.  1039,  16  L.  R.  A.  471,  34  Am.  St.  787; 

St.  755.  52  Am.  &  Eng.  R.  Cas.  197. 

'"  Burnham  v.  Grand  Trunk  R.  Co.,  '*  Kansas  City,  M.  &  B.  R.  Co.  v. 

63  Maine  298,  18  Am.  Rep.  220 ;  Tar-  Foster,   134  Ala.  244,  32  So.  773,  92 

bell    V.    Northern    Cent.    R.    Co.,   24  Am.  St.  25;   Pennsylvania  R.  Co.  v. 

Hun  (N.  Y.)  51 ;  Young  v.  Penna.  R.  Connell,  112  111.  295,  54  Am.  Rep.  238, 

Co.,  lis  Pa.  St.  112.  7  Atl.  741;  New  18  Am.  &  Eng.  R.  Cas.  339;  Hartan 

York.  L.  E.  &  W.  R.  Co.  v.  Winter,  v.    Eastern    R.    Co.,    114    Mass.    44: 

143  U.  S.  60,  36  L.  ed.  71,  12  Sup.  Ct.  Pennsvlvania    R.    Co.    v.    Loftus,    72 

356.  Ohio  St.  288.  74  N.  E.  179,  106  Am. 

'*  Knight  V.   Portland  &c.   R.   Co.,  St.  597.  3  Am.  &  Eng.  Ann.  Cas.  3 

56    Maine   234.  96    Am.    Dec.    449;  and  note. 

Brooke   v.   Grand   Trunk  R.   Co..    15  "Nichols  v.  Southern  Pac.  R.  Co., 

Mich.  332;  Cherry  v.  Chicago  &c.  R.  23  Ore.  123,  31  Pac.  296,  18  L.  R.  A. 

Co.,  191  Mo.  489,  90  S.  W.  381,  2  L.  55,  37  Am.  St.  664. 


314  BAILMENTS. 

their  assignability  is  usually  regulated  by  contract.^^  If  the  ticket 
stipulates  for  a  continuous  trip,  the  conductor  has  no  right  to 
allow  stop-overs.^' 

§  281.  Time  limitations. — A  railroad  company,  in  the  ab- 
sence of  statute  preventing,  may  reasonably  limit  the  time  within 
which  a  ticket  over  its  road  shall  be  good,^"  and  within  this  quali- 
fication it  may  be  limited  to  a  single  day,^^  or  particular  train.^^ 
A  limited  ticket  is  not  good  after  the  time  of  limitation  has  ex- 
pired, if  the  limitation  is  reasonable  and  if  the  carrier  has  fur- 
nished the  necessary  facilities  for  completing  the  journey  within 
the  stipulated  time.^^  It  seems  that  a  time  limitation  is  not  good 
unless  actually  brought  to  the  notice  of  the  passenger,  and  this 
may  not  be  done  by  public  notice  in  a  station,  nor,  it  seems,  merely 
by  a  limitation  written  or  printed  on  the  back  of  a  ticket,  where 
the  passenger  accepts  the  ticket  but  does  not  notice  the  limita- 
tion.®* Some  courts,  however,  regard  the  limitation  of  time  as 
merely  a  regulation  of  the  carrier,  of  which  the  passenger  is 
bound  to  take  notice,^^  but  the  better  rule  seems  to  be  that  it  is 
a  matter  of  contract,  and  the  passenger  must  have  expressly  or 
impliedly  consented  in  order  to  be  bound.  The  limitation  is  con- 
strued most  strongly  against  the  carrier,  and  is  held  to  apply  to 

"Granier  v.  Louisiana  &c,  R.  Co.,  Am.  &  Eng.  Ann.  Cas.  118  and  note; 

42  La.  Ann.  880,  8  So.  614;  Cody  v.  McClure  v.  Philadelphia  &c.  R.  Co., 
Central  Pac.  R.  Co.,  4  Sawy.  (U.  S.)  34  Md.  532,  6  Am.  Rep.  345;  State  v. 
114,  Fed.  Cas.  No.  2940;  Drummond  Campbell,  32  N.  J.  L.  309;  Elmore  v. 
V.  Southern  Pac.  R.  Co.,  7  Utah  118,  Sands,  54  N.  Y.  512,  13  Am.  Rep. 
25  Pac.  7ZZ.  617;  Gale  v.  Delaware  &c.  R.  Co.,  7 

'"Sanden  v.  Northern  Pac.  R.  Co.,     Hun  (N.  Y.)  670. 

43  Mont.  209.  115  Pac.  408,  34  L.  R.  ^  See  cases  cited  in  note  1,  §  283; 
A.  (N.  S.)  7lln.  Elliott  R.  R.,  §  1598. 

*" Elliott  V.   Southern   Pac.  R.  Co.,  ^Freeman  v.  Atchison,  T.  &  S.  F. 

145  Cal.  441,  79  Pac.  420,  68  L.  R.  A.  R.  Co.,  71  Kans.  227,  80  Pac.  592,  6 

393;  Greeman  v.  Atchison  &c.  R.  Co.,  Am.   &   Eng.   Ann.   Cas.    118n;   Raw- 

71  Kans.  327,  80  Pac.  592,  6  Am.  &  itzky  v.  Louisville  &c.  R.  Co.,  40  La. 

En?    Ann.  Cas.  118  and  note;  Raw-  Ann.   47,   3    So.    387;    Boling   v.    St. 

itzk\^  V.  Louisville  &c.  R.  Co.,  40  La.  Louis  &  S.  F.  R.  Co.,  189  Mo.  219,  88 

Ann   47,  3  So.  387 ;  Schubach  v.  Mc-  S.  W.  35 ;  State  v.  Campbell,  32  N.  J. 

Donald.  179  Mo.  163,  78  S.  W.  1020,  L.  309. 

65  L.  R.  A.   136,   101   Am.   St.  452;  **  Elliott  R.  R.   (2d  ed.),  §§   1596- 

Brian  v.  Oregon  Short  Line  R.  Co.,  1598;  Norman  v.  Southern  R.  Co.,  65 

40  Mont.  109,  105  Pac.  489,  25  L.  R.  S.  Car.  517.  44  S.  E.  83,  95  Am.  St. 

A     CN     S.)    459n,    20    Am.    &    Eng.  809;  Louisville  &  N.  R.  Co.  v.  Turner, 

Ann.  Cas.  311.  100  Tenn.  213,  47  S.  W.  223,  43  L.  R. 

"Freeman  v.  Atchison,  T.  &  S.  F.  A.  140. 

R.  Co.,  71  Kans.  327,  80  Pac.  592,  6  *Cobum  v.  Morgan's  Louisiana  & 


CARRIERS    OF    PASSENGERS.  315 

the  time  of  beginning  the  journey  and  not  to  the  time  of  comple- 
tion, and  if  the  journey  is  begun  before  michiight  of  the  day 
on  which  the  hmitation  expires,  it  makes  no  ditference  that  it  is 
not  completed  until  after  that  time.''"  If  there  is  no  express  limi- 
tation of  time,  the  statute  of  limitations  will  govern.^^ 

§  282.  Transfer  of  tickets — Nontransferable  tickets. — In 
the  absence  of  anything  to  the  contrary,  a  ticket  is  transferable.®^ 
Nontransferable  tickets  based  on  reduced  rates  may  be  sold,  and 
often  limited  nontransferable  tickets  are  sold,  the  purchaser  of 
which  cannot  transfer  any  rights  thereunder.^^  By  express  pro- 
visions, the  ticket  may  be  made  nontransferable,  or  void  if  pre- 
sented by  one  other  than  the  original  holder,  or  the  mere  use  of 
a  word  such  as  nontransferable  may  be  sufficient  to  restrict  the 
right  to  use  to  the  first  purchaser.®**  So  if  a  ticket  is  issued  in  the 
name  of  one  person,  the  conductor  may  refuse  to  honor  it  when 
presented  by  another,  even  if  it  was  really  purchased  for  that 
other.®^  It  has  been  held  that  one  who  presents  a  nontransferable 
ticket  issued  to  another,  without  any  attempt  at  concealment,  is 
entitled  to  the  same  care  as  any  other  passenger  if  such  ticket 
has  been  accepted,^"  and  also  that  a  conductor  may  not  refuse  to 

T.  R.  Co.,  105  La.  398,  29  So.  882,  83  Pac.  R.  Co.,  44  Minn.  454,  47  N.  W. 

Am.  St.  242;  Johnson  v.  Concord  R.  49,  9  L.  R.  A.  688,  20  Am.   St.  589; 

Co.,  46  N.  H.  213,  88  Am.  Dec.  199.  Nichols  v.   Southern  Pac.  R.  Co.,  23 

*>  Cleveland,  C.  C.  &  St.  L.  R.  Co.  Ore.  123,  31  Pac.  296,  18  L.  R.  A.  55. 

V.  Kinslev,  27  Ind.  App.  135,  60  N.  E.  Zl  Am.   St.   664;   Hudson  v.   Kansas 

169,    87    Am.    St.    245;    Auerbach    v.  Pac.  R.  Co.,  3  McCrary  (U.  S.)  249, 

New  York  Central  R.  Co.,  89  N.  Y.  9  Fed.  879. 

281,  42  Am.  Rep.  290;  Rutherford  v.  ^'Langdon  v.  Howells,  L.   R.  4  Q. 

St.  Louis   &   S.  W.   R.    Co.,   28  Tex.  B.  Div.  2>Z1 ;  Kirby  v.  Union  Pac.  R. 

Civ.  App.  625,  Q  S.  W.  161.    But  it  Co.,  51  Colo.  509.  119  Pac.  1042;  Way 

is  held  that  if   the  provision   is  that  v.  Chicago  &c.  R.  Co.,  64  Iowa  48,  19 

the  ticket  must  be  "used  to  destina-  N.   W.   828,   52  Am.   Rep.   431;    Post 

tion"  before  a  certain  date,  the  jour-  v.  Chicago  &  N.  W.  R.  Co.,  14  Nebr. 

ney   must   be   completed   before   that  110,  15  N.  W.  225,  45  Am.  Rep.  100, 

time.   Brian  v.  Oregon  Short  Line  R.  9  Am.  &  Eng.  R.  Cas.  345 ;  Schubach 

Co.,  40  Mont.   109.   105   Pac.  489,  25  v.  McDonald,  179  Mo.  163,  78  S.  W. 

L.  R.  A.  (N.  S.)  459n,  20  Am.  &  Eng.  1020,  65  L.  R.  A.  136,  101  Am.  St.  452. 

Ann.  Cas.  311.  ""See  cases  cited  in  note  89  above. 

*^  Freeman  v.  Atchison,  T.  &  S.  F.  Granier  v.   Louisiana  &'C.   R.   Co.,   42 

R.  Co.,  71  Kans.  327,  80  Pac.  592,  6  La.  Ann.  880,  8  So.  614;  Drummond 

Am.  &  Eng.  Ann.  Cas.  118  and  note;  v.  Southern  Pac.  R.  Co.,  7  Utah  118, 

Cassiano  v.  Galveston,  H.  &  S.  A.  R.  25  Par.  1ZZ. 

Co.    (Tex.  Civ.  App.\  82  S.  W.  806.  '^Chicago  &   Northwestern   R.   Co. 

®  Denver  &c.   R.    Co.   v.   Derrv,   47  v.  Bannerman,  15  111.  App.  100. 

Colo.  584,  108  Pac.  172,  27  L.  R.  A.  "'RobostelH   v.    New   York   &c.   R. 

(N.    S.)    761 ;    Carsten   v.    Northern  Co.,  Zl  Fed.  1%,  34  Am.  &  Eng.  R. 


3l6  BAILMENTS. 

honor  a  nontransferable  ticket  in  the  hands  of  one  not  the  orig- 
inal purchaser,  and  at  the  same  time  take  the  same  up  and  keep 
it,  unless  he  has  such  right  by  contract.^^  Though  a  state  statute 
may  prevent  ticket  brokerage  or  scalping,  and  such  statutes  are 
valid,^*  yet  it  has  been  held  that  where  a  traveler  purchased  a 
ticket  w^ith  no  restrictions  as  to  assignability,  he  may  maintain 
an  action  in  one  state  for  refusal  to  carry  him  on  such  ticket, 
although  in  that  state  it  is  unlawful  for  one  not  an  authorized 
agent  to  sell  tickets.®^  Where  a  passenger  presents  a  nontrans- 
ferable ticket,  the  carrier  may  require  him  to  identify  himself  by 
writing  his  signature  for  comparison  with  the  signature  written 
on  the  ticket,  and,  if  this  is  not  satisfactory,  to  produce  other 
proof,  but  only  reasonably  satisfactory  proof  of  identity  can  be 
required,  the  conductor  not  being  an  absolute  arbiter.''^ 

A  railroad  company  is  not  obliged  by  the  common  law  to  sell 
mileage  or  commutation  tickets,  but  under  certain  authorities, 
if  the  company  has  been  accustomed  to  sell  such  tickets  to  the 
public,  it  cannot  discriminate  and  refuse  to  sell  to  a  particular  in- 
dividual under  the  circumstances  and  conditions  upon  which  they 
are  usually  sold.^^  If  there  is  a  time  limitation,  the  portion  of  the 
mileage  ticket  not  used  before  the  expiration  of  such  time  is  not 
good.^^ 

§  283.  Excursion  tickets  and  round-trip  tickets. — It  is 
held  that  an  excursion  ticket  is  exclusive  evidence  of  the  terms 

Cas.  515.    See  La  Gascogne,  135  Fed.  928;  Southern  &c.  R.  Co.  v.  Hamil- 

577.    See  Denver  &c.  R.  Co.  v.  Berry,  ton,  54  Fed.  468;  Southern  R.  Co.  v. 

47  Colo.  584,  108  Pac.  172,  27  L.  R.  A.  Barlow,   104  Ga.   213,   30   S.    E.   732, 

(N.  S.)  761.  69   Am.    St.    166;    Baltimore   &c.    R. 

"'Post   V.    Chicago   &c.    R.    Co.,   14  Co.  v.  Hudson,  117  Ky.  995,  80  S.  W. 

Nebr.  110,  15  N.  W.  225,  45  Am.  Rep.  454,  25  Ky.  L.  2154;  Southern  R.  Co. 

100;    Drummond    v.    Southern    Pac.  v.  Cassell,  28  Ky.  L.   1230.  92  S.  W. 

R.  Co.,  7  Utah  118,  25  Pac.  72,3.  281.    See  also,   Pittsburg  &c.   R.  Co. 

^Burdick  V.    People,    149   111.   600,  v.   Coll,  Z7  Ind.  App.  232,  76  N.  E. 

26  N.   E.  948,  24  L.  R.   A.   152,  41  816. 

Am.    St.    329,    10    Lewis    Am.    R.    &  "'State  v.  Delaware  &c.  R.  Co.,  48 

Corp.   451   and  note;    Smalley  v.  At-  N.  J.  L.  55,  2  Atl.  803,  57  Am.  Rep. 

lanta  &  C.  A.  L.  R.  Co.,  7Z  S.  Car.  543,   23    Am.    &    Eng.    R.    Cas.   470; 

572.  53  S.  E.  1000,  6  Am.  &  Eng.  Ann.  Larrison    v.    Chicago    &c.    R.   Co.,    1 

Cas.  868  and  note.  Int.  Com.  369. 

*°  Sleeper   v.    Pennsylvania   R.   Co.,  **  Sherman  v.   Chicago  &c.   R.   Co., 

100  Pa.  St.  259,  45  Am.  Rep.  380,  9  40  Iowa  45;  Lillis  v.  St.  Louis,  K.  C. 

Am.  &  Eng.  R.  Cas.  291.  &  N.  R.  Co.,  64  Mo.  464.  27  Am.  Rep. 

"*  Marlow  v.  Southern  Pac.  R.  Co.  255 ;  Powell  v.   Pittsburg,  Cincinnati 

(Cal.),    121   Am.    St.    127,   90    Pac.  &  St.  L.  R.  Co.,  25  Ohio  St.  70. 


CARRIERS    OF    PASSENGERS. 


5^7 


of  the  contract,  and  the  advertisements  of  the  excursion  are 
not  admissible  to  vary  its  terms.""  Such  a  ticket  especially 
may  be  limited  to  a  special  train,  or  particular  day,^  but  must  not 
be  limited  for  return  so  that  a  passenger  using  due  diligence  can- 
not commence  his  return  in  time.^  In  the  absence  of  limitation 
or  notice  to  the  contrary  when  purchased,  a  round-trip  excursion 
ticket  is  good  until  used,^  and  if  the  purchaser  has  used  it  in 
making  the  journey  one  way  and  then  transfers  it,  it  is  good  in 
the  holder's  hands,  unless  there  is  a  limitation  as  to  transfer.* 

§  284.  Mutilated  tickets — Showing  ticket  before  admis- 
sion to  train. — A  mutilated  ticket  is  one  which  is  deprived  of 
some  essential  part;  where  a  ticket  is  torn  into  two  pieces,  if 
both  are  presented  to  the  conductor  at  the  same  time  and  no 
fraud  is  intended,  the  ticket  is  good.^  A  condition  that  a  coupon 
ticket  is  void  if  detached  is  valid  and  reasonable,  but  must  be 
sensibly  and  reasonably  construed,  and  the  right  to  passage  can 
not  be  refused  where  it  is  detached  by  accident  or  inadvertence, 
and  is  presented  with  the  balance  of  the  ticket  of  which  it  forms 
a  part.^  A  railroad  company  has  the  power  to  require  a  passen- 
ger to  show  his  ticket  to  a  gate  keeper  before  getting  on  the  train, 
and  any  person  having  notice  of  such  a  regulation  and  a  reason- 
able opportunity  to  comply  therewith  must  observe  it,  and  may 
be  prevented  by  force  from  its  violation.^ 

§  285.  Transfers. — Street  car  companies  frequently  use 
transfer  checks,  and  are  held  to  the  duty  to  furnish  proper  ones. 

•*  Howard  v.  Chicago,  St.  L.  &  N.  Cas.  672.   See  also,  Cherry  v.  Chicago 

O.   R.   Co.,  61    Miss.   194,   18  Am.  &  &c.  R.  Co.,  191  Mo.  489,  90  S.  W.  381, 

Eng.  R.  Cas.  313.  2  L.  R.  A.  (N.  S.)  695,  109  Am.  St. 

'  Pennington  v.  Philadelphia  &c.  R.  830. 
Co.,  62   Md.  95.   18  Am.   &   Eng.   R.        *  Carsten  v.  Northern  Pac.  R.  Co., 

Cas.  310;   McRae  v.  Wilmington  &c.  44  Minn.  454,  47  N   W   49,  9  L.  R  A. 

R.  Co.,  88  N.  Car.  526,  43  Am.  Rep.  688,  20  Am.  St   589. 
745,  18  Am.  &  Eng.  R.  Cas.  316.  "Young  v.   Central  of  Ga.  R.   Co., 

=  Texas  &   P.   R.   Co.  v.  Dennis,  4  120  Ga.  25,  47  S.  E.  556,  65  L.  R.  A. 

Tex.  Civ.  App.  90,  23  S.  W.  400.    See  436.  102  Am.  St.  68. 
on  excursion  tickets.  Cherry  v.   Chi-        •  Fairfield  v  Louisville  &  N  R   Co 

cago  &c.  R.  Co.,  191  Mo.  489,  90  S.  94  Miss.  887,  48  So.  513,  136  Am    St. 

W.  381,  2  L.  R.  A.   (N.  S.)  695,  109  611.   19  Am.   &  Eng.   Ann.   Cas.   456 

Am.  St.  830.  and  note. 

ln'/^""'^^^"j9    ?.    ?""•    ""^    Spicker,        ^Northern   Cent.  R.   Co.  v.  O'Con- 
105  Pa.  St.   142,  23  Am.  &  Eng.  R.    ner,  76  Md.  207,  24  Atl  449  16  L  R 


3l8  BAILMENTS. 

A  regulation  requiring  a  check  where  fare  is  paid  on  one  line  and 
transfer  permitted  to  another  is  valid  and  reasonable,  and  one 
who  enters  a  car  at  a  different  time  or  place  from  that  specified 
in  the  transfer  check  must  pay  fare  or  suffer  expulsion.^  The 
better  rule  is  that  if  a  carrier's  agent  makes  a  mistake  in  giving 
a  transfer,  such  mistake  is  not  binding  on  the  passenger,  and  thel 
passenger  is  not  bound  to  see  that  the  proper  transfer  is  given, 
since  a  transfer  is  merely  a  token  and  not  conclusive  evidence.^ 
The  contrary  rule,  however,  holds  in  certain  jurisdictions.^''  The 
street  car  conductor  in  punching  transfers  is  by  the  former  rule 
held  to  act  as  the  agent  of  the  company  in  the  relation  of  a  ticket 
seller,  and  his  representations  bind  the  company."  If  the  trans- 
fer is  not  required  by  statute  or  ordinance,  but  is  merely  given 
from  custom,  it  is  binding  on  the  company,^^  and  a  condition  that 
if  there  is  a  controversy  with  the  conductor  over  the  transfer  the 
passenger  must  pay  fare,  and  call  on  the  company  to  settle  the 
difficulty,  is  unreasonable.^^  A  passenger,  however,  cannot  re- 
fuse to  pay  his  fare  until  a  transfer  is  given,  though  by  experi- 
ence he  believes  that  he  otherwise  would  not  get  one  until  after 
his  transfer  point  was  passed.^* 

A.  449,  35  Am.   St.  422;  Dickerman  Co.,  79  Conn.   109,  63  Atl.  1087,   118 

V.  St.  Paul  &c.  R.  Co.,  44  Minn.  433,  Am.  St.  132,  6  Am.  &  Eng.  Ann.  Cas. 

46  N.  W.  907.  943 ;  Hornesby  v.  Georgia  R.  &  E.  Co., 

«Heffron   v.   Detroit    City   R.    Co.,  120  Ga.  913,  48  S.  E.  339,  1  Am.  & 

92  Mich.  406,  52  N.  W.  802,  16  L.  R.  Eng.  Ann.   Cas.   391   and  note.    Dis- 

A.    345,    31    Am.    St.    601 ;    Percy    v.  senting   opinion,    Indianapolis   St.    R. 

Metropolitan  St.  R.  Co.,  58  Mo.  App.  Co.  v.  Wilson,  161  Ind.  153,  66  N.  E. 

75.  950,  67  N.   E.  993,   100  Am.   St.  261, 

'  Indianapolis  St.  R.  Co.  v.  Wilson,  and  cases  cited.     See  Little  Rock  &c. 

161  Ind.  153,  66  N.  E.  950,  (il  N.  E.  R.  Co.  v.  Goerner,  80  Ark.  158,  95  S. 

993,  100  Am.  St.  261  and  cases  cited;  W.  1007,  7  L.  R.  A.  (N.  S.)  97. 

Morrill    v.    Minneapolis    St.    R.    Co.,  "  Georgia  R.  &  Elec.  Co.  v.  Baker, 

103   Minn.   362,    115   N.   W.  395,   123  125  Ga.  562.  54  S.  E.  639.  7  L.  R.  A. 

Am.  St.  341   (a  strong  case)  ;  Arnold  (N.   S.)    103,   114  Am.  St.  246;  Chi- 

V.  Rhode  Island  Co.,  28  R.  I.  118,  66  cago   &c.    Transp..  Co.   v.    Brethauer, 

Atl.   60,   125   Am.   St.  721;   Memphis  223  111.  521,  79  N.  E.  287,   114  Am. 

St.  R.  Co.  V.  Graves.  110  Tenn.  232,  St.  352. 

75  S.  W.  729,  100  Am.  St.  803;  Citi-  *' Georgia    R.    &    Electric    Co.    v. 

zens'  St.  R.  Co.  v.  Clark,  33  Ind.  App.  Baker,  125  Ga.  562,  54  S.  E.  639,  114 

190,  71  N.  E.  53,  104  Am.  St.  249.    See  Am.  St.  246. 

Montgomery    Tract.    Co.    v.    Fitzpat-  *^  Georgia    R.    S:    Electric    Co.    v. 

rick,  149  Ala.  511.  43  So.  136,  9  L.  Baker,  125  Ga.  562,  54  S.  E.  639,  114 

R.  A.  (N.  S.)  851n.  Am.  St.  246. 

"Garrison  v.  United  Rvs.  &  Elec-  "Louisville    R.    Co.    v.    Hutti,    141 

trie  Co.,  97  Md.  347.  55  Atl.  371,  99  Ky.  511,  133  S.  W.  200. 
Am.   St.  452;   Norton  v.  Consol.  R. 


CARRIERS   OF    PASSENGERS.  319 

§  286.  Limitation  of  liability  by  contract — Where  one 
travels  on  pass. — Generally,  passes  are  issued  with  a  stipula- 
tion limiting  the  carrier's  liability.  Conditions  in  passes  that  the 
person  to  whom  they  are  issued  must  do  a  certain  thing  before 
he  may  ride  or  must  conduct  himself  in  a  certain  way  while  be- 
ing carried  are  valid,  if  not  in  contravention  of  public  policy  or 
of  statute,  and  the  person  traveling  on  the  pass  is  bound  to  com- 
ply, as  where  it  is  required  that  the  pass  must  be  signed,^^  or  that 
a  drover  shall  remain  in  the  caboose  while  the  train  is  in  mo- 
tion.^® Many  passes  contain  a  stipulation  in  terms  exempting  the 
carrier  from  liability  for  negligence,  and  the  rule  in  many  juris- 
dictions is  that  such  a  limitation  is  void.^'^  There  are,  however, 
many  other  authorities  which,  with  much  reason,  hold  to  the 
contrary  in  the  case  of  a  gratuitous  pass.^^  It  is  said  that  one 
may  not  contract  to  exempt  himself  from  liability  for  future 
negligence,  since  such  a  contract  is  against  public  policy,^^  but 
the  reasoning  of  the  contrary  cases  is  that  a  carrier,  when  it  issues 
a  pass  gratuitously  and  thus  does  something  which  the  law  does 
not  require  it  to  do,  may  stipulate  against  liability  for  negli- 
gence without  contravening  principles  of  public  policy.^"     Cer- 

"  Elliott  V.  Western  &  A.  R.  Co.,  357,  21  L.  ed.  627.    See  Elliott  R.  R. 

58  Ga.  454.  (2d  ed.),  §  1608;  Walther  v.  South- 

^'Ft.    Scott,    W.   &   W.    R.    Co.   V.  ern    Pac.    R.   Co.,    159   Cal.   769,    116 

Sparks,  55  Kans.  288,  39  Pac.   1032.  Pac.  51,  Z1  L.  R.  A.  (N.  S.)  235  and 

But    the   conductor   mav   waive   com-  note. 

pliance.   Leslie  v.  Atchis'on.  T.  &  S.  F.        "See  Elliott  R.  R.  (2d  ed.),  §  1608. 

R.   Co.,  82   Kans.   152,   107   Pac.  765,  See  note  11  L.  R.  A.    (N.  S.)   235; 

27  L.  R.  A.  (N.  S.)  646.  Dugan  v.   Blue  Hill   St.   R.   Co.,  193 

"St.  Louis  &c.  R.   Co.  V.   Pitcock,  Mass.  431.   79  N.   E.   748;   Ulrich  v. 

82  Ark.  441,  101  S.  W.  725,  118  Am.  New  York  &c.  R.  Co.,  108  N.  Y.  80, 

St.  84,  12  Am.  &  Eng.  Ann.  Cas.  582;  15  N.  E.  60,  2  Am.  St.  369;  Marshall 

Illinois    Cent.    R.    Co.   v.    Beebe,    174  v.    Nashville,   R.   &c.   Co.,    118  Tenn. 

111.   13,  50  N.   E.   1019,  43  L.   R.  A.  254.  9  L.  R.  A.  (N.  S.)  1246:  Muldoon 

210,  66  Am.  St.  253;  Dovle  v.  Fitch-  v.    Seattle  &c.   R.  Co.,  7   Wash.   528, 

burg  R.  Co.,  162  Mass.  66,  11  N.  E.  35  Pac.  422.  22  L.  R.  A.  794.  28  Am. 

770,  44  Am.  St.  335,  25  L.  R.  A.  157;  St.  901.  9  Lewis  Am.  Rep.  &  Corp. 

Yazoo  &  M.  V.  R.  Co.  v.  Grant,  86  715  and  note. 

Miss.  565,  38  So.  502,  109  Am.  St.  "Mobile  &  O.  R.  Co.  v.  Hopkins, 
723,  4  Am.  &  Eng.  Ann.  Cas.  556;  41  Ala.  486,  94  Am.  Dec.  607;  Louis- 
Cleveland,  P.  &  A.  R.  Co.  V.  Curran,  ville,  N.  A.  &  C.  R.  Co.  v.  Favlor. 
19  Ohio  St.  1,  2  Am.  Rep.  362;  Chat-  126  Ind.  126,  25  N.  E.  869;  CaVroll 
tanooga  Rapid  Transit  Co.  v.  Ven-  v.  Missouri  R.  Co.,  88  Mo.  239,  57 
able,  105  Tenn.  460,  58  S.  W.  861,  51  Am.  Rep.  382. 

L.  R.  A.  886;  Galveston,  H.  &  S.  A.        ""Quimby  v.  Boston  &c.  R.  Co.,  150 

R.  Co.  v.  Bean,  45  Tex.  Civ.  App.  52,  Mass.  365,  23  N.  E.  205,  5  L.  R.  A. 

99  S.   W.   721;   New   York   Cent.   R.  846;   Muldoon  v.   Seattle  &c.  R.  Co., 

Co.  V.  Lockwood,  17  Wall.   (U.  S.)  7  Wash.  528,  35  Pac.  422,  22  L.  R.  A. 


320  BAILMENTS, 

tain  kinds  of  passes  cannot  be  held  to  have  been  issued  gratu- 
itously, for  there  has  been  a  consideration  of  some  kind  for  their 
issuance,  as  in  the  instance  of  a  drover's  pass,^^  and  the  one  rid- 
ing on  such  a  pass  is  a  passenger  for  hire. 

If  a  person  presents  a  pass  which  was  not  issued  to  him,  it  is 
a  fraud  upon  the  carrier,  and  the  carrier  owes  such  a  one  no  duty 
save  not  wilfully  to  injure  him.^"  Where  a  railroad  has  made  a 
contract  to  give  passes  which  is  based  on  a  valid  consideration, 
as  to  landowners  in  return  for  a  right  of  way,  such  contracts  will 
usually  be  upheld."^  As  a  rule,  such  a  covenant  will  not  run  with 
the  land,  so  as  to  be  binding  upon  the  successors  of  the  railroad 
company.'* 

The  interstate  commerce  act  prohibits  carriers  engaged  in 
interstate  commerce  from  issuing  free  passes  except  to  certain 
persons,  and  is  strictly  enforced.^"  Certain  states,  by  statute  or 
by  their  constitutions,  forbid  the  issuance  of  passes  to  certain  per- 
sons.^® It  seems  that  it  would  be  proper  to  contract  that  the 
holder  of  a  pass  should  have  no  right  to  be  carried  in  a  parlor 
or  sleeping  car,  but  if  the  pass  is  silent,  the  person  traveling  on 
it  may,  it  seems,  have  the  right  to  be  carried  in  such  cars  upon 

794,  28  Am.  St.  901,  9  Lewis  Am.  R.  Am.  St.  236,  7  Am.  &  Eng.  Ann.  Cas. 

&  Corp.   715  and  note.    It  was  held  586  and  note. 

in  a  recent  federal  case  that  whether  "  ElHott  R.  R.  (2d  ed.),  §  1611; 
a  waiver  of  liability  for  injuries  Western  Maryland  R.  Co.  v.  Lynch, 
printed  on  the  back  of  a  pass  is  a  82  Md.  233,  34  Atl.  40 ;  Dodge  v.  Bos- 
valid  defense  to  an  action  for  in-  ton  &c.  R.  Co.,  154  Mass.  299,  28  N. 
juries  caused  by  negligence  depends  E.  243,  13  L.  R.  A,  318,  32  Am.  Rep. 
on   the  law  of   the   place   where   the  451. 

injury  occurred.    Smith    v.   Atchison  ^  Ruddick  v.  St.  Louis,  K.  &  N.  R. 

&c.  R.  Co.,  194  Fed.  79.  Co.,    116   Mo.   25,   22   S.   W.   499,   38 

I     -'Little   Rock  &   Ft.    S.   R.   Co.   v.  Am.  St.  570,  57  Am.  &  Eng.  R.  Cas. 

;  Miles.  40  Ark.  298,  48  Am.  Rep.  10;  290;    Dichey   v.    Kansas    City  &c.    R. 

iBlatcher  v.   Philadelphia  &c.   R.   Co.,  Co.,  122  Mo.  223,  26  S.  W.  685;  Mar- 

31  App.  (D.  C.)  385,  16  L.  R.  A.  (N.  tin  v.   New   York,   S.  &  W.   R.   Co., 

S.)  991;  Delaware,  L.  &  W.  R.  Co.  v.  36  N.  J.  Eq.  109,  12  Am.  &  Eng.  R. 

Ashley,  67  Fed.  209,  14  C.  C.  A.  368;  Cas.  448;  Eddy  v.  Hinnant,  82  Tex. 

Weaver   v.    Ann    Arbor   R.    Co.,    139  354,  18  S.  W.  562. 

^lich.    590,    102    N.    W.    1037,   5   Am.  "Ex  parte  Kohler,  31   Fed.  315,   1 

&  Eng.  Ann.  Cas.  764  and  note ;  New  Int.    Com.    317,    29   Am.    &    Eng.    R. 

York  Cent.  R.   Co.  v.  Lockwood,   17  Cas.  44;  In  re  Boston  &c.  R.  Co.,  5 

Wall.  (U.  S.)  357,  21  L.  ed.  627.  Int.   Com.   69;   Slater  v.   N.   Pac.   R. 

"Harmon  v.  Jensen,  176  Fed.  519.  Co.,  2  Int.  Com.  359. 

20  Am.  &  Eng.  Ann.   Cas.  1224  and  "  State  v.  Martyn.  82  Nebr.  225,  17 

note ;   Fitzmaurice  v.   New  York,   N.  Am.  &  Eng.  Ann.  Cas.  659  and  note : 

H.  &  H.  R.  Co.,  192  Mass.  159,  78  N.  People  v.  Rathbone,  145  N.  Y.  434,40 

E.  418,  6  L.  R.  A.  (N.  S.)  1146,  116  N.  E.  395,  28  L.  R.  A.  384.  See  Mul- 


CARRIERS    OF    PASSENGERS. 


321 


paying  the  compensation  for  such  carriage."'  Unless  there  is  a 
condition  in  a  pass  in  reference  to  the  baggage  of  the  one  using 
it,  he  has  a  right  to  have  his  baggage  carried  hke  a  passenger  for 
hire,  but  the  Habihty  is  that  of  a  gratuitous  bailee,^**  and  the  car- 
rier may  Hmit  the  right  by  stipulations  in  the  pass,  and  probably 
by  rules  and  regulations."'' 

§  287.  Limitation  of  liability  where  fare  paid. — Liability 
may  not  be  limited  by  mere  notice,  nor  ordinarily  at  least,  by 
mere  rules  or  regulations  of  the  company.^"  But  one  who  has  ac- 
cepted a  ticket  which  is  in  form  a  contract  upon  its  face  is  pre- 
sumed to  have  assented  to  it,  and  to  have  agreed  to  be  carried 
according  to  the  just  and  reasonable  terms  of  the  ticket,  in  the 
absence  of  fraud  or  imposition.^^  The  carrier  may  not  contract 
against  liability  from  his  own  or  his  servant's  negligence  where 
the  carriage  is  for  an  actual  consideration,  as  where  cash  is  paid, 
or  a  pass  issued  for  a  consideration  even  though  a  reduced  rate 
was  given. ^^  It  has  been  held,  however,  that  it  may  contract 
against  such  liability  in  the  case  of  express  messengers,  unless 


doon  V.  Seattle  &c.  R.  Co.,  10  Wash. 
311,  38  Pac.  995,  22  L.  R.  A.  794,  45 
Am.  St.  787  (holding  that  where  one 
accepts  a  pass,  issuance  of  which  is 
prohibited  b}'  law,  he  is  estopped 
from  questioning  the  validity  of  its 
conditions,  which  would  be  taking 
advantage  of  his  own  wrong).  Where 
by  statute  a  carrier  must  transport 
an  accepted  gratuitous  passenger  with 
ordinary  care,  it  is  liable  for  failure 
in  such  duty  even  to  one  riding  on 
a  pass  given  contrary  to  law,  John 
v.  Northern  Pac.  R.  Co.,  42  Mont. 
18.  Ill  Pac.  632,  32  L.  R.  A.  (N.  S.) 
85. 

"Elliott   R.    R.    (2d   ed.),   §    1614; 

Lawrence  v.  Pullman  Co.,  144  Mass. 

1,    10   N.   E.   723,   59   Am.   Rep.    58; 

Mtildoon   V.    Seattle   City  R.   Co.,    10 

Wash.  311,  38  Pac.  995,  22  L.  R.  A. 

/794.  45  Am.  St.  7^7. 

/      =^Rice  v.   111.   Cent.  R.  Co.,  22  111. 

/App.  643;    Flint  &  P.   M.   R.   Co.  v. 

/  Wier.  37  Mich.  Ill,  26  Am.  Rep.  499. 

=" Elliott  R.  R.  (2d  ed.),  §  1615; 
Muldoon  V.  Seattle  &c.  R.  Co.,  10 
Wash  311,  38  Pac.  995,  22  L.  R.  A. 
794,  45  Am.  St.  787. 

Bailments — 2 1 


'"The  Majestic,  166  U.  S.  375,  41 
L.  ed.  1039,  17  Sup.  Ct.  597.  See 
cases  cited  in  note  153;  Elliott  R.  R. 
(2d  ed.),  §  1501. 

^^  Harmon  v.  Jensen.  176  Fed.  519, 

20  Am.  &  Eng.  Ann.  Cas.  1224; 
Harp  v.  Southern  R.  Co.,  119  Ga.  927, 
47  S.  E.  206.  100  Am.  St.  212;  Brown 
V.  Eastern  R.  Co.,  11  Cush.  (Mass.) 
97;  French  v.  Merchants'  Transp.  Co., 
199  Mass.  433,  85  N.  E.  424,  19  L.  R. 
A.  (N.  S.)  1006n,  127  Am.  St.  506. 
See  cases  cited  in  note  29,  §  298. 
See  contra  cases  cited  in  note  61, 
§  278.  Provision  in  railroad  ticket 
that  in  case  of  dispute  between  pas- 
senger and  conductor  as  to  right  of 
transportation  under  it,  passenger 
must  pay  fare  and  apply  to  company 
for  redress  is  invalid,  because  un- 
reasonable. Cherrv  v.  Chicago  &c.  R. 
Co.,  191  Mo.  489,  "90  S.  W.  381,  2  L. 
R.  A.  (N.  S.)  695,  109  Am.  St.  830. 

''Pittsburg  &c.  R.  Co.  v.  Higgs,  165 
Ind.  694,  76  N.  E.  299,  4  L.  R.  A.  (N. 
S.)  1081n;  New  York  Cent.  R.  Co. 
v.   Lockwood,   17  Wall.    (IT.  S.)   357. 

21  L.  ed.  627,  and  cases  cited  in  note 
213. 


322  BAILMENTS. 

forbidden  by  statute,^^  employes  o£  circus  trains,^*  or  news 
agents/^  or  sleeping  car  employes,^*'  but  not  in  the  case  of  mail 
agents.^^  The  carrier  may  enter  into  a  contract  with  an  insur- 
ance company  indemnifying  him  against  loss  sustained  by  his 
negligence,  without  contravening  public  policy.^* 

§  288.  Termination  of  the  relation  of  carrier  and  passen- 
ger.— Once  entered  into,  the  relation  of  carrier  and  passenger 
continues  until  terminated  by  the  voluntary  act  of  the  passenger, 
or  the  act  of  the  carrier  under  circumstances  justifying  termina- 
tion. At  the  end  of  the  journey  the  relation  usually  continues  un- 
til the  passenger  has  had  a  reasonable  time  and  opportunity  to  de- 
part from  the  conveyance,  and  to  avoid  further  danger  from  the 
operation  of  the  conveyance,  and  to  leave  the  carrier's  premises.^^ 

=' Louisville,  N.  A.  &  C.  R.  Co.  v.  883,  26  L.  R.  A.  718,  46  Am.  St.  514. 

Keefer,  146  Ind.  21,  44  N.  E.  796,  38  "Barker   v.    Chicago.   P.   &   St.   L. 

L.  R.  A.  93,  58  Am.  St.  348;  Hosmer  R.   Co.,  243  III.  482,  90   N.   E.   1057, 

V.  Old  Colony  R.  Co.,  156  Mass.  506,  26  L.  R.  A.   (N.  S.)   1058n,  134  Am. 

31  N.  E.  652;  Robinson  v.  St.  Johns-  St.  382  ^   Seyboldt  v.   New  York  &c. 

bury,  L.  C.  R.  Co.,  80  Vt.  129,  66  Atl.  R.   Co.,  95   X.  Y.  562,  47  Am.   Rep. 

814,  9  L.  R.  A.  (N.  S.)   1249;  Peter-  75. 

son  V.  Chicago  &c.  R.  Co.,  119  Wis.  "*  Boston  &  A.  R.  Co.  v.  Mercantile 

197,  96  N.  W.  532,  100  Am.  St.  879;  &c.  Co.,  82  Md.  535,  34  Atl.  778,  38 

forbidden    bv    Kansas    statute,    Weir  L.  R.  A.  97;   Kansas  Citj^   M.  &  B. 

V.   Roundtree,   173   Fed.   776,    19  Am.  R.  Co.  v.  Southern  R.  News  Co.,  151 

&  Eng.  Ann.  Cas.  1204  and  note ;  for-  Mo.  373.  52  S.  W.  205,  45  L.  R.  A. 

bidden  by  Ky.   Constitution  and  Va.  380,  74  Am.  Rep.  545. 

Code,  Davis  v.  Chesapeake  &c.  R.  Co.,  ^*  Note   19  Am.   &   Eng.  Ann.    Cas. 

122  Kv.  528,  29  Ky.  L.  53,  92  S.  W.  1021 ;   Glenn   v.   Lake  Erie  &  W.   R. 

339,  5"L.  R.  a.  (N.  S.)  458,  121  Am.  Co.,   165  Ind.  659,  75  N.  E.  282,  112 

St.  481,  12  Am.  &  Eng.  Ann.  Cas.  723.  Am.  St.  255,  2  L.  R.  A.  (N.  S.)  873, 

^Clough    v.    Grand    Trunk   W.    R.  112  Am.   St.  255  and  note;   Chicago. 

Co.,  155  Fed.  81,  85   C.   C.  A.  1,   11  R.    I.   &   P.   R.    Co.   v.    Wimmer,  72 

L.  R.  A.  (N.  S.)   466;  Cleveland  &c.  Kans.   566.  84   Pac.  378,  4  L.   R.  A. 

R.   Co.  V.  Henrv,   170  Ind.  94,  83  N.  (X.    S.)    140,    7    Am.    &    Eng.    Ann. 

E.   710,   note,   12   Am.   &  Eng.   Ann.  Cas.   757  and  note;  Hall  v.   N.   Pac. 

Cas    1077  R.    Co.,    16  N.   Dak.   60,   111   N.  W. 

^Griswold  v.  New  York  &  N.  E.  609,   14  Am.   &  Eng.   Ann.   Cas.  960 

R.   Co.,  53  Conn.  371,  4  Atl.  261,  55  and    note.      It   terminates    with    safe 

Am.  Rep.  115;  contra.  Starry.  Great  and     sufficient     egress     from     depot 

Northern  R.  Co..  67  Minn.  18.  69  N.  grounds.     Alabama    Great    Northern 

W.  632;   Texas  &  P.  R.  Co.  v.  Fen-  R.    Co.  v.   Godfrey,   156  Ala.  202,  47 

wick.   34  Tex.   Civ.   App.   222,  78   S.  So.   185,   130  Am.   St.  76;   Melton  v. 

W    S48  Birmingham  R.  &c.  Co.,  153  Ala.  95, 

'"Denver  &c.  R.   Co.  v.  Whan,  39  45  So.  151,  16  L.  R.  A.  (N.  S.)  467; 

Colo    230.   89  Pac.   39,   11   L.   R.   A.  Fremont,  E.  &  M.  V.  R.  Co.  v.  Hag- 

(N    S.)  432n;  Chicago  &c.  R.  Co.  v.  blad.  72  Nebr.  773,   101  N.  W.  1033, 

Hamler,  215  111.   525.  74  N.  E.  705,  106  N.  W.  1041.  4  L.  R.  A.   (N.  S  ) 

1  L.  R.  A.   (N.  S.)  674.  106  Am.  St.  254;  Berryman  v.  Penna.  R.  Co.,  228 

187.      See    cases    cited    in    note    58.  Pa.  621.  77  Atl.  1011,  30  L.  R.  A.  (N. 

Contra,    Jones    v.    St.    Louis    S.    W.  S.)  1049. 
Railway  Co.,  125  Mo.  666,  28  S.  W. 


CARRIERS    OF    PASSENGERS.  323 

If  the  passenger  delays  after  a  reasonable  time  has  been  given, 
the  carrier  is  no  longer  liable  for  his  safety.*'^ 

§  289.  Duty  to  stop  at  stations,  to  announce  stations,  to 
conform  with  schedules,  and  to  give  passenger  proper  in- 
structions.— It  is  the  duty  of  the  carrier  to  stop  at  the  pas- 
senger's destination,  if  he  has  sold  him  a  ticket  to  stop  at  a  cer- 
tain station.*^  This  will  not  apply  if  the  ticket  is  not  good  on 
the  train  which  the  passenger  has  boarded,  or  it  does  not  stop  at 
such  station,  and  the  passenger  was  negligent  in  failing  to  ascer- 
tain such  fact,^^  but  if  the  ticket  was  received  without  objection 
or  warning,  it  is  held  that  the  train  must  stop.*"  If  the  train 
stops  at  the  destination  only  upon  signal,  it  is  the  duty  of  the 
passenger  to  notify  the  carrier's  servants  in  time.** 

The  carrier  must  stop  at  the  usual  place  of  discharge,  and  must 
provide  reasonably  safe  accommodations,  a  safe  place  to  alight 
being  implied  in  the  contract,*^  and  wait  until  the  passenger  has 
had  reasonable  opportunity  to  alight  in  safety.*^  The  carrier  is 
liable  for  taking  the  passenger  beyond  his  destination,*^  and  it  is 
the  carrier's  duty,  embraced  in  the  contract,  to  announce  sta- 

*»  Glenn  v.  Lake  Erie  R.  Co..   165  106  Ga.  826,  32  S.  E.  873;  Gulf  &c. 

Ind.  659,  75   N.   E.  282,  2  L.   R.  A.  R.  Co.  v.  Ryan,  4  Tex.  App.  Civ.  Cas. 

(N.  S.)  872,  112  Am.  St.  255.  305,  18  S.  W.  866.    Contra,  San  An- 

^  See  cases  cited  in  note  6  Am.  &  tonio  &c.  R.  Co.  v.  Dykes  (Tex.  Civ. 

Eng.  Ann.  Cas.  25;  South  &c.  R.  Co.  App.),  45  S.  W.  758. 

V.  Hofifman,  76  Ala.  492;  Gulf,  C.  &  *' Elliott   R.    R.    (2d   ed.),   §§   1590, 

S.  F.  R.  Co.  V.  Moore,  98  Tex,  302,  1627a;    McGovern    v.    Interurban    R. 

83  S.  W.  362,  4  Am.  &  Eng.  Ann.  Cas.  Co.,   136   Iowa    131.    Ill    N.   W.   412, 

770,  revg.  80  S.  W.  426.    But  a  pas-  125  Am.   St.  215 ;   Besecker  v.   Dela- 

senger  who  boards  a  street-car  with-  ware   &c.    R.    Co.,    220    Pa.    St.    507, 

out  inquiry  cannot  rely  upon  a  sign  69  Atl.  1039,  123  Am.  St.  714. 

on  the  car  indicating  its  destination  **  Georgianna  Topp  v.  United  Rys. 

as  creating  a  contract  to  take  him  to  &c.  Co.,  99  Md.  630,  59  Atl.  52,  1  Am. 

such    place.      O'Connor    v.     Halifax  &    Eng.    Ann.    Cas.    913    and    note. 

Transp.  Co.,  37  Can.  Sup.  523,  3  Am.  Where  a  train  runs  past  a  station  for 

&  Eng.  Ann.  Cas.  1075.  purposes   of   the   company,   it   is    the 

^  Cases  cited,  6  Am.  &  Eng.  Ann.  company's    duty   to    inform   the   pas- 

Cas.  26;  Sira  v.  Wabash  R.  Co.,  115  sengers  of  its  intention  to  return  and 

Mo.    127,  21   S.  W.  905,  37  Am.   St.  offer  them  an   opportunity  to  alight. 

386;    Richmond,    F.   &    P.    R.    Co.   v.  Natchez,  C.  &  M.  R.  Co.  v.  Lambert 

Ashly,  79  Va.  130,  52  Am.  Rep.  620.  (Miss.),  54  So.  836,  37  L.  R.  A.  (N. 

*^  Hutchinson   v.    Southern    R.    Co.,  S.)    264  and  note.    Carrier  must  al- 

140  N.  Car.  123,  52  S.  E.  263.  6  Am.  low    passengers     sufficient     time     to 

&  Eng.  Ann.  Cas.  22.    See  McDonald  alight.    Chicago.  B.  &  Q.   R.   Co.   v. 

v.    Central   R.    Co.,  72   N.   J.   L.  280,  Lampman,  18  Wyo.  106.  104  Pac.  533, 

62  Atl.  405,  2  L.  R.  A.  (N.  S.)  S05n,  25  L.  R.  A.  (N.  S.)  217n,  Ann.  Cas. 

Ill  Am.  St.  672.  1912C.  788  and  note. 

"Central  of  Ga.  R.  Co.  v.  Dorsey,  "Dalton  v.  Kansas  City  F.  S.  &  M. 


324 


EAILMEXTS. 


tions.*^  The  passenger  is  entitled  only  to  the  usual  notice  of  the 
approach  to  the  station,  and  any  promise  to  give  special  notice, 
as  to  awaken  a  sleeping  passenger/^  is  beyond  the  authority  of 
the  sei-vants  to  bind  the  carrier.  The  carrier  is  liable  for  unrea- 
sonable delay  in  the  performance  of  the  contract,  if  caused  by 
his  negligence,^ "^  but  if  caused  by  the  elements,  is  not.^^  A  car- 
rier must  use  due  diligence  to  conform  to  its  schedules  and  time 
tables  which  it  holds  out  to  the  public,  but  is  ordinarily  bound 
only  to  use  reasonable  diligence  and  reasonable  speed  in  carrying 
out  this  part  of  its  contract.^-  It  is  the  carrier's  duty  to 
give  to  the  passenger  such  instructions  and  information  as  are 
reasonably  necessary  to  enable  him  to  pursue  his  journey  with- 
out undue  danger  or  delay,  and  the  passenger  has  a  right  to  rely 
upon  such  instructions  f^  for  instance,  a  railroad  company  may 
be  liable  for  the  act  of  a  ticket  agent  in  misdirecting  a  passenger 
who  asks  him  the  best  route  from  one  station  to  another.^* 


R.  Co.,  78  Kans.  232,  96  Pac.  475,  17 
L.  R.  A.  (N.  S.)  1226n,  16  Am.  & 
Eng.  Ann.  Cas.  185  and  note. 

**  Seaboard  Airline  R.  v.  Rainey, 
122  Ga.  307,  50  S.  E.  88,  106  Am.  St. 
134,  2  Am.  &  Eng.  Ann.  Cas.  675; 
Campbell  v.  Seaboard  Airline  R.,  83 
S.  Car.  448,  65  S.  E.  628,  23  L.  R. 
A.  (N.  S.)  10S6n,  137  Am.  St.  824. 
See  Natchez,  J.  &  C.  R.  Co.  v.  Lam- 
bert, 70  Miss.  779,  13  So.  33.  See 
Texas,  N.  O.  R.  Co.  v.  Richardson 
(Tex.  Civ.  App.),  143  S.  W.  722. 
Failure  to  announce  a  station  is  not 
a  ground  of  liability  where  a  pas- 
senger is  possessed  of  all  the  knowl- 
edge which  would  be  imparted  by  the 
announcement.  Chicago,  B.  &  Q.  R. 
Co.  V.  Lampman.  18  Wyo.  106,  104 
Pac.  533,  25  L.  R.  A.  (N.  S.)  217n, 
Ann.  Cas.   1912C.  788. 

*•  Seaboard  Airline  Ry.  v.  Rainey, 
122  Ga.  307,  50  S.  E.  88,  106  Am.  St. 
134;  Sevier  v.  Vicksburg  &c.  R.  Co., 
61  Miss.  8. 

'^  See  Black  v.  Charleston  &  W.  C. 
R.  Co.,  82S.  Car.241.69S.E.230.  31 
L.  R.  A.  (N.  S.)  1184,  holding  that 
the  statute  forbidding  railroad  em- 
ployes to  work  more  than  sixteen 
hours  consecutively  is  no  defense 
where  carrier's  negligence  caused 
the  need  of  such  work.  See  cases 
cited  under  note  52,  post;  Quimby  v. 


Vanderbilt,  17  N.  Y.  306.  72  Am.  Dec. 
469;  Weed  v.  Panama  R.  Co.,  17  N. 
Y.  362,  72  Am.  Dec.  474. 

^'Cormack  v.  New  York,  N.  H.  & 
H.  R.  Co.,  196  N.  Y.  442,  90 
N.  E.  56.  24  L.  R.  A.  (N.  S.)  1209n.  17 
Am.  &  Eng.  Ann.  Cas.  949  and  note. 

^^Wilsey  v.  Louisville  &c.  R.  Co., 
83  Kv.  511,  7  Ky.  L.  498;  Heirn  v. 
McCaughan,  32  Miss.  17,  66  Am. 
Dec.  588;  Coleman  v.  Southern  R. 
Co..  138  N.  Car.  351,  50  S.  E.  690. 

''Louisville  &c.  R.  Co.  v.  Cook, 
12  Ind.  App.  109,  38  N.  E.  1104;  New- 
comb  V.  New  York  Cent.  &c.  R.  Co.. 
182  Mo.  687,  81  S.  W.  1069; 
Duinelle  v.  New  York  Cent.  &  H.  R. 
R.  Co.,  120  N.  Y.  117,  24  N.  E.  319, 
8  L.  R.  A.  224,  17  Am.  St.  611 ;  Bar- 
ker v.  New  York  Cent.  R.  Co.,  24 
N.  Y.  599;  Hunter  v.  Southern  R. 
Co.,  90  S.  Car.  507,  72  S.  E.  1017.  A 
carrier  must,  upon  request  made  to 
its  employes,  give  notice  to  a  pas- 
senger holding  a  through  ticket  of  a 
place  where  change  of  trains  must 
be  made,  and  is  liable  for  carrying 
her  past  such  place  because  of  fail- 
ure to  give  her  the  requested  infor- 
mation. Lilly  V.  St.  Louis  &c.  R.  Co. 
COkla.),  122  Pac.  502,  39  L.  R.  A. 
(N.  S.)  663  and  note. 

"Southern  R.  Co.  v.  Nowlin,  156 
Ala.  222,  47  So.  180,  130  Am.  St.  91 ; 


Carriers  of  passengers.  325 

§  290.  Sleeping  and  parlor-car  companies, — Sleeping  and 
parlor-car  companies  are  held  to  be  neither  common  carriers  nor 
innkeepers. °°  They  do  not  undertake  to  carry  passengers,  but 
assume  a  special  duty  to  furnish  additional  accommodations,  be- 
yond those  reasonable  accommodations  which  it  is  the  dut}^  of 
the  railroad  carrier  of  passengers  to  furnish,  and  for  such  addi- 
tional accommodations  they  receive  a  compensation.  They  have 
nothing  to  do  with  the  operation  of  the  train  or  the  road.  They 
do  not  hold  themselves  out  as  offering  accommodations  to  all 
who  may  desire  them,  as  public  carriers  do,  yet  they  are  affected 
with  a  public  interest,  and  are  under  a  duty  to  serve  all  impartially 
who  apply  to  them,  and  to  exercise  reasonable  care  to  furnish 
the  required  service.^®  Their  liability  is  only  for  negligence,  and 
they  are  held  only  to  ordinary  or  reasonable  care  for  the  protec- 
tion of  the  passenger,  and  for  a  reasonable  and  usual  amount 
of  baggage,^^  and  are  only  liable  for  the  passenger's  effects  so 
far  as  they  can  be  considered  baggage. ^^  The  railroad  company 
is,  however,  liable  as  a  common  carrier  to  the  occupant  of  the 
sleeping  car  while  he  is  riding  in  it,  under  a  duty  to  use  the  high- 
est practical  degree  of  care  to  carry  him  safely  and  comfortably,' 
and  may  be  held  liable  for  the  acts  of  the  servants  of  the  sleeping 
car  company  in  regard  to  that  duty.^*^  A  sleeping  car  company 
is  under  a  duty  to  furnish  a  berth  to  a  person  who  has  a  proper 

railroad  ticket,  and  at  the  proper  time  and  place  tenders  the  com-^ 

I 

Cincinnati   &c.   R.   Co.   v.   Rauc,    130  111.  222,  4  Ky.  L.  926,  46  Am.  Rep. 

Ky.  454,  113  S.  W.  495,  132  Am.  St.  688,  11  Am.  &  Eng.  R.  Cas.  92.          , 

400.   But   see   McKinley  v.   Louisville  ^'  Pullman    Co.    v.    Green,    128    Ga. 

&c.  R.  Co.   (Ky.),  127  S.  W.  483,  28  142,  57  S.   E.  233,   119  Am.   St.  368. 

L.    R.    A.    (N.    S.)    611;    St.    Louis  10   Am.   &   Eng.   Ann.    Cas.   893   and 

Southwestern    R.    Co.    v.    White,    99  note;   Pullman   Co.  v.   Schaffner,  126 

Tex.  359,  89  S.  W.  746,  2  L.  R.   A.  Ga.  609,  55  S.  E.  933,  9  L.  R.  A.   (N. 

(N.    S.)    110,    13    Am.   &    Eng.   Ann.  S.)   407n. 

Cas.  965  and  note.  '''Bacon  v.   Pullman   Co.,   16  L.   R. 

'=*  Elliott    R.    R.    (2d   ed.),    §    1616;  A.   (N.  S.)   578,   159  Fed.   1,  14  Am. 

Pullman  Palace  Car  Co.  v.  Hall,  106  &   Eng.    Ann.    Cas.    516;    Godfrev   v. 

Ga.   765,  32   S.   E.  923,  44  L.   R.   A.  Pullman  Co.,  87  S.  Car.  361,  69  S.  E. 

790,  71   Am.   St.  293;   Lewis  v.   New  666,  Ann.  Cas.  1912B.  971. 

York    Sleeping    Car    Co.,    143    Mass.  ''"Louisville  &  Nashville  R.   Co.  v. 

267,  9  N.  E.  615,  58  Am.  Rep.   135;  Church,  155  Ala.  329,  46  So.  457.  130 

Blum  V.   Southern   Pullman  Car  Co.,  Am.  St.  29n ;  Taber  v.  Seaboard  .\ir- 

III    Cent.   Law   Journal    591,   22   Int.  hne  Ry.,  84  S.  Car.  291,66  S.  E.    292,10 

Rev.  Rec.  305.  Am.    &    Eng.    Ann.    Cas.     1132    and 

'*' Searles  v.  Mann  &c.  Co.,  45  Fed.  note;    Campbell   v.    Seaboard    Airline 

330;  Nevin  v.   Pullman  &c.  Co.,  106  R.  Co.,  83  S.  Car.  448,  65  S.  E.  628, 


326  BAILMENTS. 

pensation.^"  It  may  orally  contract  to  reserve  a  berth,  is  liable 
on  such  a  contract,^^  and  is  not  liable  for  a  failure  to  give  a  berth 
so  reserved  to  one  who  applies  for  it  before  the  one  who  first 
applied  has  paid  for  it.®"  It  is  the  company's  duty  not  only  to 
provide  the  bed,  but  also  to  furnish  suitable  means  of  getting  into 
and  out  of  the  berth,®"  to  ventilate  and  heat  the  cars,®*  and  to 
awaken  the  passenger  in  time  to  properly  prepare  to  leave  the 
train  at  his  destination,®^  such  being  essentially  a  part  of  the 
contract. 

§  291.  Sleeping-car  tickets. — It  is  usually  held  that  the 
sleeping-car  ticket  does  not  fully  express  the  contract,  and  may 
be  added  to  by  parol,®®  but  it  seems  that  the  passenger  who  buys 
the  right  to  a  certain  berth  cannot  rightly  claim  any  other.®^  A 
sleeping-car  company  cannot  contract  against  its  own  negligence, 
but  in  reference  to  property  of  passengers  it  may  contract,  or 
make  reasonable  rules  and  regulations  for  its  disposition,  and  it 
seems  that  a  contract  relieving  the  company  from  liability  unless 
the  passengers  put  their  property  in  certain  designated  places 
provided  therefor  is  valid,  and  if  there  is  a  regulation  to  such 
effect  which  is  brought  to  the  knowledge  of  the  passenger,  he  is 
bound  by  it.®®     A  railroad  company  may  itself  furnish  sleeping- 

137  Am.  St.  824;  Nashville,  C.  &  St.  man  Palace  Car  Co.,  92  Fed.  824,  34 

L.  R.  Co.  V.  Lillie,  112  Tenn.  331,  78  C.  C.  A.  382. 

S.   W.   1055,    105   Am.    St.   947;    See  *=*  Pullman    Car    Co.    v.    Lutz,    154 

Elliott  R.  R.  (2d  ed.),  §  1625.  Ala.  517,  45  So.  675,  14  L.  R.  A.  (N. 

•"■Searles    v.    Mann    Boudoir    Car.  S.)   907n.   129  Am.   St.   67;   Airey  v. 

Co.,  45  Fed.  330;   Nevin  v.   Pullman  Pullman  Palace  Car  Co.,  50  La.  Ann. 

&c.   Car.   Co.,   106  111.  222,  4  Ky.   L.  648,  23  So.  512;  McKeon  v.  Chicago 

926,  46  Am.  Rep.  688;   Pullman  Car.  &c.   Rv.  Co.,  94  Wis.  477.  69  N.  W. 

Co.   V.   Lee,   49   111.    App.   75 ;    Law-  175,  35  L.  R.  A.  252,  59  Am.  St.  910. 

rence    v.    Pullman    Palace    Car.    Co.,  *^  Mann  Boudoir  Car  Co.  v.  Dupre, 

144  Mass.   1,   10  N.  E.  121,  59  Am.  54  Fed.  646,  21  L.  R.  A.  289;  Lewis 

Rep.   58,  28  Am.  &  Eng.   Ann.   Cas.  v.  New  York  &c.  Co.,  143  Mass.  267, 

151.  9  N.  E.  615. 

*^Braun  V.  Webb.  32  Misc.  (N.  Y.)  <"  Searles    v.    Mann    Boudoir    Car 

243,  65  N.  Y.  S.  668 ;  Pullman  Palace  Co.,    45    Fed.    330 ;    Pullman    Palace 

Car  Co.  V.  Booth    (Tex.  Civ.  App.),  Car    Co.   v.    Taylor,   65    Md.   153.   32 

28   S.  W.   719;    Pullman    Palace   Car  Am.    Rep.    57;    Pullman    Palace    Car 

Co.  V.  Nelson,  22  Tex.  Civ.  App.  223,  Co.  v.   Marsh,  24  Ind.   App.   129.  53 

54  S  W  624  N.   E.   782 ;    Pullman   Co.   v.   Willett. 

"  Searles  v.  Mann  Boudoir  Car  Co.,  27  Ohio   C.   C  649 ;    Pullman  Palace 

45  Fed.  330.  Car    Co.   v.   Bales,   80   Tex.   211,    15 

""Pullman      Palace      Car      Co.      v.  S.  W.  785. 

Fielding.  62  111.  App.  577.  «^  Elliott   R.   R.    (2d   ed.),    §    1627; 

"*  Hughes    V.    Pullman    &c.    Co.,   74  Watkins   v.   Rymill.  L.    R.    10   Q.   B. 

Fed.  499.   See  Edmaundson  v.  Pull-  Div.  178 ;  Blum  v.  Southern  R.  Co.,  3 


CARRIERS    OF    PASSENGERS.  327 

cars  or  parlor  cars,  and  demand  additional  compensation  for  their 
use  as  additional  accommodations.®* 

§  292.  Carriers  of  passengers  by  water. — The  general 
rules  applicable  to  the  carrier  of  passengers  by  land  are  appli- 
cable in  the  main  to  the  passenger  carrier  by  water.'**  The  dutieS' 
are  modified  in  general  only  by  the  differences  caused  by  the 
means  and  manner  of  transportation,  but,  in  addition,  there  are 
in  this  country  a  great  many  federal  statutes  for  the  regulation 
and  licensing  of  steam  vessels,  their  engineers,  masters  and  pilots, 
and  providing  for  the  safety  and  accommodation  of  passengers, 
but  which  in  no  way  lessen  the  common-law  liability  of  the  car- 
rier.''^ There  is  an  especial  duty  upon  the  water  carrier  to  fur- 
nish sufficient  and  proper  food  for  the  passengers,'^'  and  bedding 
and  sleeping  accommodations  to  all  passengers  on  a  ship  except 
those  in  the  steerage.'^  The  master  of  a  ship  is  in  a  position  such 
that  he  has  a  great  authority  over  a  passenger,  such  authority, 
however,  not  extending  beyond  the  reasonable  necessities  of  the 
circumstances. 

§  293.  Liability  for  baggage  of  passengers. — The  carrier 
of  passengers  is  liable  as  a  common  carrier  of  goods  for  the  car- 
riage of  the  ordinary  and  reasonable  baggage  of  one  who  is  a 
passenger  upon  consideration,  being  an  insurer  of  safety  except 
for  loss  caused  by  the  act  of  God,  the  public  enemy,  or  the  fault 
of  the  passenger,'*  the  compensation  paid  for  fare  being  the  cofi- 

Cent.  L.  J.  591 ;  Pullman  Palace  Car  397,  18  Fed.  Cas.  10.  572 ;  The  Cen- 

Co.    V.    Smith,    li    111.    360,    24    Am.  tennial,  131  Fed.  816;  Defrier  v.  The 

Rep.  258.  Nicaragua,  81  Fed.  745.   And  the  car- 

""St.  Louis  &c.  R.  Co.  V.  Hardy,  55  rier    must    sell    berths    without    dis- 

Ark.   134,   17   S.   W.  711.  crimination,    Patterson    v.    Old    Do- 

'^  Northwestern       Steamship      Co.,  minion    S.    S.    Co.,    140   N.    Car.  412, 

Limited,  v.  Ransom,  174  Fed.  913,  20  53  S.  E.  224,  5  L.  R.  A.  (N.  S.)   1012. 

Am.  &  Eng.  Ann.  Cas.  1015  and  note;  111  Am.  St.  848. 
Simmons  v.  New  Bedford  &c.  Steam-        "Wood   v.    Maine   Central   R.    Co.. 

boat  Co..  97  Mass.  361.  93  Am.  Dec.  98  Maine  98.  56  Atl.  457.  99  Am.  St. 

99;   Caldwell   v.    New  Jersey   Steam-  339.     See  very  full  monographic  note 

boat  Co.,  47  N.  Y.  282.  on  subject  of  liability  of  carriers  for 

"Thomp.-Neg.,  §  6452.  the  baggage  of  passengers.  99  Am.  .St. 

"The  Oregon,  133  Fed.  609.  68  C.  343  et  seq;  Adger  v.  Blue  Ridge  k. 

C.  A.  603;   The  European.   120  Fed.  Co.,  71  S.  Car.  213,  50  S.  E.  783,  110 

776,  57  C.  C.  A.  140;  The  D.  C.  Mur-  Am.   St.  568.  Elliott  R.  R.    (2d  ed.  I, 

ray,    89    Fed.    508;    Defrier   v.    The  §  1651;  Dibble  v.  Brown,  12  Ga   217. 

Nicaragua,  81   Fed.   745.  56  Am.  Dec.  460;  Coskery  v.  Nagle, 

"The  Qriflamme,  3  Sawy.  (U.  S.)  83  Ga.  696,  10  S.  E.  491,  6  L.  R.  A. 


328  BAILMENTS. 

sideration  for  the  carnage  of  baggage  also."  The  HabiHty  as 
common  carrier  begins  at  the  time  of  delivery  for  transportation, 
'if  not  unreasonably  long  before  the  intended  time  of  departure/^ 
and  continues  until  the  baggage  has  been  transported  to  its  des- 
tination, and  the  owner  has  been  given  a  reasonable  time  and 
-opportunity  to  claim  it  and  take  it  away.^^  Sometimes  liability 
for  baggage  begins  before  the  purchase  of  a  ticket,  or  before  the 
owner  becomes  a  passenger,  if  the  owner  intends  in  good  faith  to 
make  the  journey,  and  delivers  the  baggage  a  reasonable  time 
before,'*  and  it  is  not  always  necessary  that  the  person  should 
make  the  proposed  journey,'^  for  instance,  if  he  is  prevented  by 
the  fault  of  the  carrier,  and  the  baggage  is  destroyed  before  the 
beginning  of  the  journey.*"  There  is  a  delivery  where  baggage  is 
placed  in  possession  of  the  carrier's  agent,  and  is  accepted  for 
transportation  by  him,  or  by  deposit  at  the  usual  place,  notice 
being  given  to  the  agent,  who  assents,  but  it  is  not  sufficient  to 
deposit  without  notice  unless  usage  may  make  the  carrier  liable, 
nor  is  a  carrier  who  accepts  a  baggage  check  liable  until  actual 
ipossession  is  obtained  from  another  carrier.*^  When  baggage  has 
been  held  for  a  reasonable  time  upon  arrival  at  its  destination  and 

1 

483,  20  Am.  St.  333;  Camden  &  A.  Shore  &c.  R.  Co.  v.  Foster,  104  Ind. 

R.  &  Transp.  Co.  v.  Burke,  13  Wend.  293,  4  N.   E.  20,  54  Am.   Rep.  319; 

(N.  Y.)  611,  28  Am.  Dec.  488.  Green  v.   Milwaukee  &c.   R.  Co.,  41 

'^Strouss   V.    Wabash   &c.   R.    Co.,  Iowa  410. 

17  Fed.  209;  Wood  v.  Maine  Central  "Hickox  v.  Xaugatuck  R.  Co.,  31 

R.  Co.,  98  Maine  98,  56  Atl.  457,  99  Conn.  281,  83  Am.  Dec.  143 ;  Camden 

Am.    St.   339;   Long  v.    Pennsylvania  &  A.   R.  &  Transp.   Co.  v.  Belknap, 

R.  Co.,  147  Pa.  St.  343,  23  Atl.  459,  21  Wend.   (N.  Y.)  354;  Goldberg  v. 

14  L.  R.  A.  741,  30  Am.  St.  732.  Ahnapee  &  W.   R.   Co.,   105  Wis.   1, 

'^Lake   Shore  &   M.   S.   R.   Co.  v.  80  N.  W.  920,  47  L.   R.  A.  221,  76 

Foster,  104  Ind.  293,  4  N.  E.  20,  54  Am.    St.    899.    Delivery    of    a    trunk 

Am.  Rep.  319;  Fitchburg  &  W.  R.  Co.  the    night    before    by    one   who    in- 

V.    Hanna,    6   Gray    (Mass.)    539,  66  tends  taking  a  morning  train  is  not 

Am.  Dec.  427 ;  Illinois  Central  R.  Co.  made  at  an  unreasonable  time.     Cone 

V.  Tronstine,  64  Miss.  834,  2  So.  255,  v.  Southern  R.  Co.,  85  S.  Car.  524,  67 

31  Am.  &  Eng.  R.  Cas.  99.  S.  E.  779,  21  Am.  &  Eng.  Ann.  Cas. 

"  Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  158.     See  note  14  Am.  &  Eng.  Ann. 

Tapp,  6  Ind.  App.  304,  33  N.  E.  462 ;  Cas.  912. 

Mote  V.  Chicago  &  N.  W.  R.  Co.,  27  ^  Green  v.  Milwaukee  &  St.  P.  R. 

Iowa  22,  1  Am.  Rep.  212;  Dininny  v.  Co.,   41    Iowa  410;    Wood   v.   Maine 

New  York  &  New  Haven  R.  Co.,  49  Central  R.  Co.,  98  Elaine  98,  56  Atl. 

N.  Y.  546 ;  Hoeger  v.  Chicago,  M.  &  457,  99  Am.  St.  339. 

St.  P.  R.  Co.,  63  Wis.  100,  23  N.  W.  "  Southern   R.   Co.   v.   Bickley,   119 

435.  53  Am.  Rep.  271 ;  note,  99  Am.  Tenn.  528.  107  S.  W.  680,  14  L.  R.  A. 

St.  376.  (N.    S.)    859n.    123  Am.    St.   754,    14 

^'Hickox  V.  Naugatuck  R.   Co.,  31  Am.  &  Eng.  Ann.  Cas.  910. 
Conn.  281,  83  Am.  Dec.   143;   Lake 


CARRIERS   OF   PASSENGERS.  329 

opportunity  has  been  given  to  take  it  awa3%  the  liability  as  carrier 
ends,  and  thenceforward  that  of  warehouseman  for  hire  exists.'^ 
If  the  passenger  is  carried  free,  the  liability  for  his  baggage  is 
only  that  of  a  gratuitous  bailee,  that  is,  for  gross  negligence,^' 
and  the  liability  is  usually  the  same  if  the  passenger  does  not 
make  the  journey  he  intends,  and  does  not  in  fact  accompany  the 
baggage.^* 

§  294.  What  is  baggage. — It  is  difficult  to  define  this 
term.  In  Elliott  on  Railroads  it  is  said,  "In  its  broadest  sense  it 
denotes  those  things  which  a  passenger  takes  with  him  on  his 
journey,  either  for  his  use  while  in  transit  or  to  accomplish  the 
ultimate  purpose  of  his  journey,  and  may  include  not  only  things 
taken  for  the  personal  convenience  of  the  passenger,  but  also 
merchandise  knowingly  received  and  carried  along  with  the  pas- 
senger as  baggage.  In  its  strictest  sense  it  may  be  defined  as 
meaning  those  things  which  passengers  of  the  same  class  usually 
or  fittingly  carry  with  them  for  their  personal  use  or  convenience 
on  similar  journeys."®^  Another  definition  is  "  'Baggage'  means 
such  goods  and  chattels  as  the  convenience,  or  comfort  (A),  the 
taste  (B),  the  pleasure  (C),  or  the  protection  (D),  of  passen- 
gers generally  (E)  makes  it  fit  and  proper  for  the  passenger  in 
question  to  take  with  him  for  his  personal  use  (F),  according  to 
the  habits  or  wants  of  the  class  to  which  he  belongs  (G),  either 
with  reference  to  the  period  of  the  transit  or  the  ultimate  pur- 
pose of  the  journey  (H)."®^ 

§  295.  Personal  baggage. — Personal  baggage  includes  in 
a  broad  sense  those  articles  which  are  carried  for  personal  use 
and  convenience  on  the  journey,  or  perhaps  for  a  member  of  the 

'=  Elliott  R.   R.    (2d  ed.),   §   1652;  499.   As   to   liability  of   carrier   for 

Central  of  Ga.  R.  Co.  v.  Jones,   150  baggage  checked  on  a  free  pass,  see 

Ala.  379,  43  So.  575,  124  Am.  St.  71 ;  Denver  &  R.  G.   R.   Co.  v.  Johnson, 

Lafifrey  v.   Gummond,   74  Mich.   186,  50  Colo.  187,  114  Pac.  650,  Ann.  Cas. 

41    N.   W.  894,   3   L.   R.   A.  287,   16  1912C.  627  and  note. 
Am.    St.    624;    Tallman    v.    Chicago,        "Wood   v.   Maine  Central   R.   Co., 

M.  &  St.  P.   R.  Co.,   136  Wis.  648,  98  Maine  98,  56  Atl.  457,  99  Am.  St. 

118  N.  W.  205,  16  Am.  &  Eng.  Ann.  339n. 
Cas.  711  and  note.  *' Elliott  R.  R.   (2d  ed.),  §  1646. 

^'See     cases     cited     in     note    28,        ""'A  legal  definition  of  baggage," 

§    296;    Flint    &    P.    M.    R.    Co.    v.  38  Cent.  L.  J.  5,  6. 
Wier,   37   Mich.    Ill,   26  Am.    Rep. 


330 


BAILMENTS. 


passenger's  family,  and  during  the  stay  at  the  place  to  which  he 
is  going.^^  It  must  usually  be  a  question  of  fact  as  to  what  ar- 
ticles may  be  included  in  this  definition,  taking  into  consideration 
the  station  in  life  of  the  passenger,^^  the  duration  of  the  journey, 
the  length  of  stay  contemplated  at  the  destination,  and  the  pur- 
pose of  the  journey,*^  his  business,®**  the  sex  of  the  passenger, 
and  perhaps  peculiarities  in  his  personal  circumstances.^^  Arti- 
cles necessary  for  a  temporary  stay  at  a  particular  place  are 
baggage.®"  It  is  held  that  the  test  is  what  is  usually  carried  as 
baggage,  but  this  rule  does  not  apply  in  all  cases.®^  Under  some 
circumstances,  one  may  carry  as  baggage  the  goods  of  another 
with  whom  he  is  traveling.®*  In  the  notes  will  be  found  a  cata- 
logue of  articles  which  have  been  considered  baggage,  either  gen- 
erally, or  under  the  particular  circumstances  of  the  case,®^  also 


"Elliott  R.  R.  (2d  ed.),  §  1647; 
Hawkins  v.  Hoffman,  6  Hill.  (N. 
Y.)  586,  41  Am.  Dec.  767n;  New 
York  Cent.  &  Hudson  River  R.  Co. 
V.  Fraloff,  100  U.  S.  24,  25  L.  ed.  531. 
**  Macrow  v.  Great  Western  R.  Co., 
L.  R.  6  Q.  B.  612;  Dibble  v.  Brown,  12 
Ga.  217,  56  Am.  Dec.  460;  New  York 
Cent.  &c.  R.  Co.  v.  Fraloff,  100  U. 
S.  24,  25  L.  ed.  531. 

«*  Hannibal  R.  Co.  v.  Swift,  12  Wall. 
(U.  S.)  262,  20  L.  ed.  423;  Merrill  v. 
Grinnell.  30  N.  Y.  594. 

»» Kansas  City  &  Ft.  S.  &  G.  R. 
Co.  V.  Morrison.  34  Kans.  502,  9  Pac. 
225,  55  Am.  Rep.  252;  Gleason  y. 
Goodrich  Transp.  Co.,  32  Wis.  85, 
14  Am.  Rep.  716. 

•'Chicago,  Rock  Island  &  Pac.  R. 
Co.  V.  Whitten,  90  Ark.  462,  119  S. 
W.  835,  21  Am.  &  Eng.  Ann.  Cas. 
726  and  note  on  what  is  baggage. 
"  Toledo.  Wabash  &  Western  R.  R. 
Co.  V.  Hammond,  33  Ind.  379,  5  Am. 
Rep.  221 ;  Dexter  v.  Syracuse,  B.  & 
N.  Y.  R.  Co.,  42  N.  Y.  326,  1  Am. 
Rep.  527;  Texas  &  N.  O.  R.  Co.  v. 
Lawrence,  42  Tex.  Civ.  App.  318,  95 
S.  W.  663. 

•'Dibble  v.  Brown,  12  Ga.  217,  56 
Am.  Dec.  460. 

•*  Brick  V.  Atlantic  Coast  Line  R. 
Co.,  145  N.  Car.  203,  58  S.  E.  1073, 
122  Am.  St.  440. 

•"Among  things  which  have  been 
held  personal  baggage  are  a  reason- 
able amount  of  money  for  the  pur- 


poses of  the  journey   (St.  Louis   S. 
W.  R.  Co.  V.  Berry,  60  Ark.  433,  30 
S.    W.    764,    28    L.    R.    A.    501,    46 
Am.  St.  212;  Dibble  v.  Brown,  12  Ga. 
217,  56  Am.  Dec.  460;   Hutchings  v. 
Western   R.   Co.,  25  Ga.  61,   71   Am. 
Dec.    156;    Baltimore    Steam    Packet 
Co.   V.    Smith,   23    Md.   402,  87   Am. 
Dec.    575 ;   Jordan   v.    Fall    River    R. 
Co.,    5    Cush.    (Mass.)    69,    51    Am. 
Dec.  44;    Runyan  v.   Central   R.   Co. 
of  N.  J.,  61  N.  J.  L.  537,  41  Atl.  367, 
68    Am.    St.    711;    Fairfax    v.    New 
York  Cent.  &c.  R.  Co.,  73  N.  Y.  167, 
29  Am.   Rep.    119)  ;  jewelry  and  or- 
naments  to  be  worn  on   the   person 
(Godfrey  v.  Pullman  Co.,  87  S.  Car. 
361,  69  S.  E.  666,  Ann.  Cas.   1912B 
971 ;    Coward  v.   East  Tennessee  &c. 
R.  Co.,  16  Lea  (Tenn.)  225,  57  Am. 
Rep.   227;    New   York   Cent.   &c.    R. 
Co.   V.   Fraloff,   100  U.   S.  24,  25  L. 
ed.    531)  ;    firearms    for    sportsmen 
(Pullman   Palace-Car  Co.  v.  Adams, 
120  Ala.  581,  24  So.  921,  45  L.  R.  A. 
767,  74  Am.  St.  53 ;  Davis  v.  Michigan 
Southern  &c.   R.  Co.,  22  111.  278,  74 
Am.  Dec.  151)  ;  and  fishing  tackle  of 
sportsmen    (Macrow  v.  Great  West- 
ern   R.    Co.,    L.    R.   6   Q.    B.    612)  ; 
manuscript    notebooks   of    a    student, 
necessary  in  his  studies   (Hopkins  v. 
Wescott,  6  Blatchf.   (U.  S.)  64,  Fed. 
Cas.  No.  6692)  ;  a  reasonable  number 
of    tools    of    a    mechanic    (Davis    v. 
The  Cayuga  &  Susquehanna  R.  Co., 
10  How.  Pr.  (N.  Y.)  330;  Porter  v. 


CARRIERS    OF    PASSENGERS. 


331 


of  those  which  have  been  held  not  to  be  baggage.®' 

§296.     Merchandise  carried  as  baggage. — If  merchandise 
is  carried  with  baggage,  as  the  samples  of  a  traveling  man,"^ 


Hildebrand,  14  Pa.  St.  129)  ;  travel- 
ing salesman's  price  list  (Staub  v. 
Kendrick,  121  Ind.  2Z(>,  23  N.  E.  79, 
6  L.  R.  A.  619n;  Gleason  v.  Good- 
rich Transp.  Co.,  32  Wis.  85)  ;  opera 
glasses  (Toledo  &  W.  R.  Co.  v.  Ham- 
mond, 33  Ind.  379,  5  Am.  Rep.  221)  ; 
books  for  amusement  and  enter- 
tainment (Doyle  V.  Kiser,  6  Ind. 
242)  ;  camera  (Atwood  v.  Mohler, 
108  111.  App.  416)  ;  telescope  (Cad- 
wallader  v.  Grand  Trunk  R.  Co.,  9 
L.  Canada  169)  ;  gold  spectacles 
(Newb.  Admr.  (U.  S.)  494)  ;  stage 
costumes  knowingly  accepted  (Cakes 
V.  Northern  Pac.  R.  Co.,  20  Ore.  392, 
26  Pac.  230,  12  L.  R.  A.  318,  23  Am. 
St.  126)  ;  carpet  (Minter  v.  Pacific  R. 
Co.,  41  Mo.  503,  97  Am.  Dec.  288)  ;  a 
watch,  when  it  is  carried  in  a  trunk 
(McCormick  v.  Hudson  River  R.  Co., 
4  E.  D.  Smith  181)  ;  a  nurse's  record 
book  (Werner  v.  Evans,  94  111.  App. 
328)  ;  a  surgeon's  instruments  (Han- 
nibal &c  R.  Co.  V.  Swift,  12  Wall. 
(U.  S.)  262,  20  L.  ed.  423)  ;  dresses 
and  material  for  dresses  for  members 
of  one's  family  (Dexter  v.  Syracuse 
&c.  R.  Co.,  42  N.  Y.  326,  1  Am.  Rep. 
527)  ;  pistols  for  protection  (Woods 
V.  Devin  13  111.  746,  56  Am.  Dec. 
483)  ;  bedding  of  a  poor  man  mov- 
ing with  his  familv  (Ouimit  v.  Hen- 
shaw,  35  Vt.  605,  84  Am.  Dec.  646)  ; 
a  hunting  dog  (Kansas  City  &c.  R. 
Co.  V.  Higdon,  94  Ala.  286,  10  So. 
282,  14  L.  R.  A.  515,  33  Am.  St. 
119)  ;  a  large  quantity  of  lace  be- 
longing to  women  of  rank  (Fraloff 
V.  New  York  Cent.  &c.  R.  Co.,  10 
Blatchf.  (U.  S.)  16,  Fed.  Cas.  No. 
5025)  ;  a  small  piece  of  ice  wrapped 
so  as  not  to  drip  (Mcintosh  v. 
Augusta  &c.  R.  Co.,  87  S.  Car.  181, 
69  S.  E.  159,  80  L.  R.  A.  (N.  S.) 
889)  ;  barber's  tools  (Grzywacz  v. 
New  York  Cent.  &  H.  R.  R.  Co..  134 
N.  Y.  S.  209).  See  note  in  21  L.  R. 
A.  (N.  S.)  850,  as  to  whether  articles 
intended  for  gifts  are  baggage. 

**  The  following  are  not  baggage : 
More  money  than  is  reasonably  suf- 
ficient for  journey  (Pfister  v.  Central 
Pac.  R.  Co..  70  Cal.  169,  11  Pac.  686. 
59  Am.    Rep.   404;    Levins   v.   New 


York  N.  H.  &  H.  R.  Co.,  183  Mass. 
175,  66  N.  E.  803,  97  Am.  St  434) ; 
jewelry  not  to  be  worn  by  the  pas- 
senger (Michigan  Cent.  R.  Co.  v. 
Carrow,  73  111.  348,  24  Am.  Rep. 
248;  The  Ionic,  5  Blatchf.  (U.  S.) 
538)  ;  bedding  and  household  furni- 
ture not  to  be  used  on  journey 
(Mauritz  v.  New  York,  L.  E.  &  W. 
R.  Co.,  23  Fed.  765,  21  Am.  &  Eng. 
R.  Cas.  280)  ;  silver  knives,  forks 
and  spoons  (Files  v.  Fauntleroy,  13 
Md.  126;  Orange  County  Bank  v. 
Brown,  9  Wend.  (N.  Y.)  85,  24  Am. 
Dec.  129)  ;  a  sacque,  muff  and  silver 
napkin  rings  carried  by  a  man  (Chi- 
cago, R.  I.  &  P.  R.  Co.  v.  Boyce,  73 
111.  510,  24  Am.  Rep.  2o8)  ;  deeds 
and  valuable  documents  (Phelps  v. 
London  &c.  R.  Co.,  19  C  B.  (N.  S.) 
321)  ;  an  artist's  pencil  sketches 
(Mytton  v.  Midland  R.  Co.,  28  L.  J. 
Exch.  385)  ;  a  hobby  horse  (Hud- 
ston  v.  Midland  R.  Co.,  L.  R.  4  Q. 
B.  366,  38  L.  J.  R.  (Q.  B.)  213); 
dogs  (Honeyman  v.  (Oregon  &c.  R. 
Co.,  13  Ore.  352,  10  Pac.  628,  57  Am. 
Rep.  20n)  ;  masquerade  costumes 
(Michigan  &c.  R.  Co.  v.  Oehm.  56 
111.  293)  ;  a  silk  bed  quilt  carried  in 
a  lady's  trunk  (St.  Louis  &  Cairo 
R.  Co.  V.  Hardway,  17  111.  App. 
321)  ;  ladies'  jewelry  carried  by  a 
man  (Metz  v.  California  So.  R.  Co., 
85  Cal.  329,  24  Pac.  610,  9  L.  R.  A. 
431n,  20  Am.  St.  228,  44  Am.  &  Eng. 
R.  Cas.  433)  ;  a  concertina  (Bruty  v. 
Grand  Trunk  R,  Co.,  32  U.  C  Q.  B. 
66)  ;  handcuffs  (Bomar  v.  Maxwell, 
9  Humph.  (Tenn.)  621,  51  Am.  Dec 
682);  fruit  and  groceries  (Georgia 
R.  Co.  v.  Johnson,  113  Ga.  589,  38  S. 
E.  954)  ;  Masonic  regalia  (Nevins 
V.  Bay  State  Steamboat  Co.,  4  Bosw. 
(N.  Y.)  225)  ;  a  bicycle  (Britten  v. 
The  Great  Northern  Railwav  (1899) 
1  Q.  B.  243,  68  L.  J.  Q.  B.  75 ;  State 
V.  Missouri  Pac.  R.  Co..  71  Mo.  App. 
385),  bed  linen  of  parties  moving, 
St.  Louis  &c.  R.  Co.  V.  Miller  (Ark.), 
145  S.  W.  889,  39  L.  R.  A.  (N.  S.) 
634.  and  see  note  as  to  when  house- 
hold supplies  are  baggage. 

•^New    Orleans    &    N.    E.    R.    Co. 
V,  Shackelford,  87  Miss.  610,  40  So. 


332  BAILMENTS. 

jewelry  of  a  traveling  jewelry  agent,  ^®  merchandise  purchased 
and  carried  home  as  such,^°  or  articles  of  any  kind  carried 
for  sale/  the  carrier  is  not  ordinarily  liable  for  them  as  bag- 
gage, unless  they  have  been  accepted  as  such  with  knowl- 
edge.^ Where  a  trunk  contains  both  personal  baggage  and 
merchandise,  the  carrier  without  notice  is  liable  only  for  the 
personal  baggage.^  Ordinarily  the  carrier  may  assume  that  a 
trunk  contains  only  personal  baggage,*  and  it  is  held  that  if 
it  contains  merchandise,  it  is  a  fraud  on  the  carrier  to  fail 
to  disclose  such  a  fact,°  though  this  was  an  extreme  case,  and, 
on  the  other  hand,  it  has  been  held  that  the  carrier  may  get 
notice  by  observing  the  obvious  character  of  baggage,^  as  well 
as  by  information  from  the  passenger,  and  the  carrier  which  by 
its  baggage  master  or  other  agent  knowingly  accepts  merchan- 
dise, or  other  articles  not  ordinarily  carried  as  baggage,  even 
without  extra  compensation,  is  liable  as  for  personal  baggage.'^ 
Also  many  valuable  goods,  such  as  traveling  men's  samples,  are 
often  carried  as  baggage  for  a  compensation  aside  from  that  paid 

427,  4  L.  R.  A.  (N.  S.)  1035.  112  Am.  1Z  N.  Y.  St.  812,  38  N.  Y.  S.  341; 

St.    461,    6   Am.    &   Eng.    Ann.    Cas.  Humphreys  v.  Perrv,  148  U.  S.  627, 

826.  Zl   L.   ed.    587,    13   Sup.    Ct.    711,   54 

"=  Humphreys  v.    Perry,   148  U.   S.  Am.  &  Eng.  R.  Cas.  29. 

627,    Z1    Fed.    587,    13    Sup.    Ct.    711,  "Haines   v.    Chicago,    St.   P.    M.   & 

54  Am.  &  Eng.  R.  Cas.  29.  O.   R.   Co.,  29  Minn.    160,   12   N.   W. 

=*  Ilhnois  Cent.  R.  Co.  v.  Matthews,  447,    43    Am.    Rep.    199 ;    Humphreys 

114  Ky.  973,  24  Kv.  L.  1766,  72  S.  W.  v.  Perry,  148  U.  S.  627,  Zl  L.  ed.  587, 

302,  60  L.   R.   A.  846,    102   Am.    St.  13   Sup.  Ct.  711,  54  Am.  &  Eng.  R. 

316.  Cas.  29. 

^  Brick  V.   Atlantic   Coast  Line   R.  °  Brick  v.   Atlantic   Coast   Line   R. 

Co.,  145  N.  Car.  203,  58  S.  E.  1073,  Co.,  145  N.  Car.  203,  58  S.  E.  1073, 

122  Am.  St.  440.  122   Am.    St.   440. 

=  Illinois     Cent.     &c.     R.     Co.     v.  "3  Thomps.  Neg.  (2d  ed.),  §  3403; 

Mathews,  114  Ky.  973,  24  Ky.  L.  1766,  Kansas  City  &c.  R.  Co.  v.  McGahey, 

72  S.  W.  302,  60  L.  R.  A.  846,  102  63  Ark.  344,  38  S.  W.  659.  Z6  L.  R.  A. 

Am.  St.  316;  New  Orleans  &  N.   E.  781n,  58  Am.  St.  Ill:  Trimble  v.  New 

R.  Co.  V.  Shackelford,  87  Miss.  610,  York  Cent.  &c.  R.  Co.,  162  N.  Y.  84, 

40  So.  427,  4  L.  R.  A.   (N.  S.)   1035,  56  N.  E.  532,  48  L.  R.  A.  115. 

6  Am.  &  Eng.  Ann.  Cas.  826;  Wells  ^  Bergstrom  v.  Chicago,  R.  T.  &  P. 

V.    Great   Northern    R.    Co.,    59   Ore.  R.  Co.,  134  Iowa  223,  111  N.  W.    818, 

165,   114   Pac.  92,    116  Pac.    1070,   34  13  Am.  &  Eng.  Ann.  Cas.  239;  Mc- 

L.  R.  A.   (N.  S.)  818.     See  also,  St.  Kibbin    v.    Wisconsin    Cent.    R.    Co., 

Louis  &c.   R.   Co    V.   Miller    (Ark.),  100  Minn.  270,  110  N.  W.  964,  8  L. 

145  S.  W.  889,  39  L.  R.  A.  (N.  S.)  R.  A.   (N.  S.)  489,  117  Am.  St.  689. 

634.  See  St.  Louis,  I.  M.  &  S.  R.   Co.  v. 

"Simpson  V.  New  York,  N.  H.  &  Miller  (Ark),  145  S.  W.  889. 
H.   R.   Co.,   16  Misc.    (N.   Y.)    613, 


CARRIERS   OF    PASSENGERS.  333 

for  the  passenger's  ticket,  and  as  to  such  the  carrier  is  an  in- 
surer.^ 

§  297.  Limitation  of  liability  for  baggage. — Railroad  car- 
riers may  limit  the  amount  of  baggage  which  they  will  carry  for 
each  passenger,"  and  for  any  overweight,  they  may  contract  for 
separate  compensation.^"  Where  an  infant  travels  with  its  parent 
without  payment  of  fare,  the  infant's  baggage  is  held  to  be  car- 
ried aa  a  part  of  the  parent's  baggage  for  which  the  carrier  is 
held  liable."  To  render  the  carrier  liable,  there  must  be  a  deliv- 
ery and  acceptance,  and  the  general  rules  applicable  to  delivery 
and  acceptance  by  carriers  of  goods  apply  to  delivery  and  accept- 
ance of  baggage.^"  If  one  carries  with  him  as  baggage  the  prop- 
erty of  another  not  traveling  with  him  or  a  member  of  his  fam- 
ily, the  carrier  is  liable  only  as  gratuitous  bailee.^^  Where  the 
passenger  retains  custody  of  the  baggage,  the  carrier  is  as  a  rule 
not  liable  unless  loss  or  damage  has  been  caused  by  its  negli- 
gence.^* 

§  298.  Baggage  checks  and  limitation  of  liability  by  ticket. 
— Baggage  checks  are  held,  by  the  weight  of  authority,  to  be  mere 
tokens  evidencing  the  receipt  of  the  baggage  by  the  carrier,  not 
embodying  the  contract  to  carry  the  baggage.^^  The  contract  to 
carry  the  passenger  is  a  contract  to  carry  his  baggage  also.    The 

'IMillard   v.    Missouri    &c.    R.    Co.,  ^^  Brick  v.  Atlantic   Coast  Line   R. 

86  N.  Y.  411,  6  Am.  &  Eng.  R.  Cas.  Co.,  145  N.  Car.  203,  58  S    E.  1073, 

311;  Talcott  v.  Wabash  R.  Co.,   159  122  Am.   St.  440. 

N.    Y.    461,    54    N.    E.    1;    Oakes  v.  "Elliott   R.    R.    (2d   ed.),   §    1654; 

Northern    Pac.    R.    Co.,   20   Ore.   39,  Kerr  v.  Grand  Trunk  R.  Co.,  24  U. 

26  Pac.  230.  23  Am.  St.  126.  C.  C.  P.  209;  Tower  v.  Utica  R.  Co.. 

•New   York    Cent.    &c.    R.    Co.    v.  7  Hill   (N.  Y.)   47,  42  Am.  Dec.  36; 

Fraloff,  100  U.  S.  24,  25  L.  ed.  531 ;  Carpenter  v.  New  York.  N.  H.  &  H. 

Norfolk  &c.  R.  Co.  v.  Irvine,  84  Va.  R.  Co..  124  N.  Y.  53,  26  N.  E.  277. 

553.  5  S.  E.  532.  11  L.  R.  A.  759.  21  Am.  St.  644;  The 

'"Dibble  V.  Brown,  12  Ga.  217,  56  R.  E.  Lee,  2  Abb.  (U.  S.)  49.  See 
Am.  Dec.  460;  Gulf  &c.  R.  Co.  v.  note  Ann.  Cas.  1912D.  1156.  The  car- 
Ions,  3  Tex.  Civ.  App.  619,  22  S.  W.  rier  is  liable  for  the  theft  of  hand- 
1011.  baggage  by  a  trainman  to  whom  it  is 

"  Withey  v.  Fere  Marquette  R.  Co.,  temporarily  delivered  while  acting  in 

141   Mich.  412,   104  N.  W.  ITi,   1   L.  the  scope  of  his  employment  in  assist- 

R.  A.  (N.  S.)  352n.  113  Am.  St.  533,  ing    the    passenger    to    alight.      Has- 

12  Det.  Leg    N.  511,  7  Am.  &  Eng.  brouck  v.  New  York  Central  &c.  R. 

Ann.   Cas.   57.  Co.,  202  N.  Y.  363,  95  N.  E.  808,  Ann. 

"See  cases  cited   in  notes  79  and  Cas.  1912D.  1151. 

81,  §  293,  and  supra,  delivery  to  car-  '^Elliott   R.    R.    C2d   ed.),   §    1655, 

riers  of  goods,  §§  130-139.  Hickox    v.    Naugatuck    R.    Co.,    31 


334 


BAILMENTS. 


possession  of  the  check  is  prima  facie  evidence  that  the  baggage 
has  been  received  by  the  carrier,^^  and  that  the  holder  is  entitled 
to  receive  it,"  but  such  evidence  is  not  conclusive,  and  may  be 
explained.^^  The  implied  contract  is  that  the  baggage  shall  be 
transported  on  the  same  train  with  the  passenger,  and  the  carrier 
may  be  liable  for  failure  to  do  so  if  the  baggage  was  delivered  in 
proper  season/"  If  received  after  the  train  left,  it  has  been  held 
to  be  carried  as  freight  for  a  separate  compensation,^"  but  if  the 
company  receives  it  in  ample  time,  and  fails  to  send  it  on  the  train 
with  the  passenger,  it  must  transport  it  on  a  subsequent  train  as 
baggage.^^  If  the  carrier  contracts  absolutely  to  transport  the 
baggage  at  all  events,  it  must  use  the  required  degree  of  care  upon 
whatever  train  it  is."  If  the  passenger  stops  oft,  and  the  bag- 
gage is  carried  ahead,  the  liability  for  its  care  during  the  re- 
mainder of  the  journey  has  been  held  to  be  merely  that  of  a  gra- 
tuitous bailee.-^ 


Conn.  281,  83  Am.  Dec.  143 ;  Chicago, 
R.  I.  &  P.  R.  Co.  V.  Clayton,  78  111. 
616;  Ahlbeck  v.  St.  Paul  &c.  R.  Co., 
39  Minn.  424,  40  N.  W.  364,  12  Am. 
St.  661;  Griffith  v.  Atchison  &c.  R. 
Co.,  114  Mo.  App.  590,  90  S.  W.  408. 

"Davis  V.  Michigan  Southern  &c. 
R.  Co.,  22  111.  278.  74  Am.  Dec.  151; 
Dill  V.  South  Carolina  R.  Co.,  7  Rich. 
L.  (S.  Car.)  158,  62  Am.  Dec.  407; 
Louisville  &c.  R.  Co.  v.  Weaver,  77 
Tenn.  38,  42  Am.  Rep.  654. 

"St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Stone,  78  Ark.  318,  95  S.  W.  470; 
Hickox  V.  Naugatuck  R.  Co.,  31 
Conn.  281,  83  Am.  Dec.  143;  Illinois 
Cent.  R.  Co.  v.  Copeland,  24  111. 
332.  76  Am.  Dec.  749. 

"Chicago,  R.  I.  &  P.  R.  Co.  v. 
Clayton,  78  111.  616;  Davis  v.  Michi- 
gan &c.  R.  Co..  22  111.  278,  74  Am. 
Dec.  151 ;  Southern  R.  Co.  v.  Bick- 
ley,  119  Tenn.  528,  107  S.  W.  680,  14 
L.  R.  A.  (N.  S.)  859n,  123  Am.  St. 
754,  14  Am.  &  Eng.  Ann.  Cas.  910 
and  note. 

"  Toledo  &c.  R.  Co.  v.  Tapp,  6  Ind. 
App.  304,  33  N.  E.  462;  Wilson  v. 
Grand  Trunk  &c,  R.  Co.,  56  Maine 
60,  96  Am.  Dec.  435;  8  Am.  Law 
Reg.  (N.  S.)  398;  Blumenthal  v. 
Maine  Cent.  R.  Co.,  79  Maine  550, 
11  Atl.  605,  34  Am.  &  Eng.  R.  Cas. 
247;  Marshall  v.  Pontiac  &c,  R.  Co., 


126  Mich.  45,  85  N.  W.  242,  55  L. 
R.  A.  650;  Conheim  v.  Chicago  Great 
Western  R.  Co.,  104  Minn.  312,  116 
N.  W.  581,  17  L.  R.  A.  (N.  S.)  1091, 
124  Am.  St.  623,  15  Am.  &  Eng.  Ann. 
Cas.  389. 

="  Wilson  V.  Grand  Trunk  R.  Co.,  56 
Alaine  60,  96  Am.  Dec.  435 ;  Graffam 
V.  Boston  &  M.  R.  Co.,  67  Maine 
234;  Collins  v.  Boston  &  M.  R.  Co., 
10  Cush.   (Mass.)   506. 

^Warner  v.  Burlington  &c.  R.  Co., 
22  Iowa  166,  92  Am.  Dec.  389;  Wil- 
son V.  Grand  Trunk  R.  Co.,  56  Maine 
60,_^96  Am.  Dec.  435. 

^Warner  v.  Burlington  &c.  R.  Co., 
22  Iowa  166,  92  Am.  Dec.  389;  Adger 
V.  Blue  Ridge  R.  Co.,  71  S.  Car.  213, 
50  S.  E.  783,  110  Am.  St.  568;  Wilson 
V.  Chasapeake  &c.  R.  Co.,  21  Grat. 
(Va.)  654. 

='Wood  V.  Maine  Cent.  R.  Co.,  98 
Maine  98,  56  Atl.  457,  99  Am.  St. 
339  (but  compare  IMcKibbin  v.  Wis- 
consin Cent.  R.  Co..  100  Minn.  270, 
110  N.  W.  964) ;  Cutler  v.  North 
London  Ry.,  19  Q.  B.  Div.  64;  com- 
pare Lafifrey  v.  Grummond,  74  Mich. 
186,  41  N.  W.  894,  3  L.  R.  A.  287. 
16  Am.  St.  624;  Marshall  v.  Pontiac 
&c.  R.  Co.,  126  Mich.  45.  85  N.  W. 
242,  55  L.  R.  A.  650;  Howell  v.  Grand 
Trunk  R.  Co.,  92  Hun  (N.  Y.)  423, 
36  N.  Y.  S.  544. 


CARRIERS    OF    TASSEXGERS. 


335 


A  railroad  company  selling  a  through  ticket  may  contract  to 
limit  its  liability  to  loss  occurring  on  its  own  line,"*  but  the  com- 
pany selling  a  through  ticket  is  liable  for  loss  of  baggage  on  con- 
necting lines  in  absence  of  agreement,-^  and  the  same  rule  ap- 
plies if  the  baggage  is  checked  through.-"  By  regulations  brought 
to  the  notice  of  passengers,  the  carrier  may  limit  his  liability  as 
insurer  to  a  fixed  amount,  demanding  compensation  for  carry- 
ing and  liability  as  to  a  larger  amount,-^  but  some  courts  hold 
that  the  passenger  must  assent  to  such  a  condition  on  a  ticket  or 
check  or  other  notice  in  order  to  be  bound,^^  though  it  seems  that 
if  the  limitation  is  reasonable  and  is  printed  on  a  ticket  which 
is  in  form  a  contract  and  not  merely  a  token,  and  given  for  a 
! reduced  rate,  such  limitation  is  valid,-^  in  the  absence  of  fraud, 
even  if  the  passenger  did  not  read  it  or  understand  it,  but  did 
sign  the  ticket.  As  to  contracting  against  negligence,  opposing 
views  prevail  in  different  jurisdictions  as  in  regard  to  other  car- 


riers of  goods.^** 

**  Peterson  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  80  Iowa  92,  45  N.  W.  S72,; 
Gulf  R.  Co.  V.  Ions,  3  Tex.  Civ.  App. 
619,  22  S.  W.  1011. 

^  Little  Rock  &c.  R.  Co.  v.  Record, 
74  Ark.  125,  85  S.  W.  421,  109  Am. 
St.  67;  Kansas  City  &c  R.  Co.  v. 
Washington,  74  Ark.  985,  85  S.  W. 
406,  69  L.  R.  A.  65,  109  Am.  St.  61 ; 
Najac  V.  Boston  &  Lowell  R.  Co.,  7 
Allen  (Mass.)  329,  83  Am.  Dec.  686; 
Talcott  V.  Wabash  R.  Co.,  66  Hun 
(N.  Y.)  456,  50  N.  Y.  St.  423,  21 
N.  Y.  S.  318,  modified,  159  N.  Y. 
461,  54  N.  E.   1. 

^'Adger  v.  Blue  Ridge  R.  Co.,  71 
S.  Car.  213,  50  S.  E.  783,  110  Am.  St. 
568;  But  see  Marmonstein  v.  Penn- 
sylvania R.  Co.,  13  Misc.  (N.  Y.)  2,2, 
68  N.  Y.  St.  172,  34  N.  Y.  S.  97; 
Isaacson  v.  New  York  Cent.  &c.  R. 
Co.,  94  N.  Y.  278,  46  Am.  Rep.  142, 
16  Am.  &  Eng.  R.  Cas.  188. 

^'The  Majestic,  56  Fed.  244;  Steers 
V.  Liverpool  &c.  Steamboat  Co.,  57 
N.  Y.  1,  15  Am.  Rep.  453n;  Smith 
v.  N.  Carolina  R.  Co.,  64  N.  Car.  235 ; 
New  York  Cent.  &c.  R.  Co.  v.  Fra- 
loff,  100  U.  S.  24.  25  L.  ed.  531; 
Gamon  v.  Oregon,  R.  &  Nav.  Co.,  52 
Wash.  685.  101  Pac.  361,  25  L.  R.  A. 
(N.  S.)  537. 

""Weigand  v.  Central  R,  Co.,  75 


Fed.  370,  affd.  79  Fed.  991,  25  C.  C. 
A.  681;  Baltimore  &c.  R.  Co.  v. 
Campbell,  36  Ohio  St.  647,  38  Am. 
Rep.  617,  3  Am.  &  Eng.  R.  Cas.  246. 
"General  liability  of  carriers  of  pas- 
sengers for  baggage,"  2  Am.  &  Eng. 
R*.  Cas.  (N.  S.)  I.,  and  authorities 
cited;  Little  Rock  &c.  R.  Co.  v. 
Record,  74  Ark.  125,  85  S.  W.  421, 
109  Am.  St.  67;  Hooker  v.  Boston 
&  M.  R.  Co.,  209  Mass.  598,  95  N.  E. 
945,  Ann.  Cas.  1912B.  669;  Wilson  v. 
Chesapeake  &c.  R.  Co.,  21  Grat. 
(Va.)  654. 

^  See  cases  cited  in  note  31, 
§  287;  Elliott  R.  R.  (2d  ed.),  §  1661; 
French  v.  Merchants'  &  Miners' 
Transp.  Co.,  199  Mass.  433,  85  N.  E. 
424,  19  L.  R.  A.  (N.  S.)  1006;  Rose 
v.  Northern  Pac.  R.  Co.,  35  Mont.  70, 
88  Pac.  767,  119  Am.  St.  836;  Gardi- 
ner v.  N.  Y.  Cent.  &c.  R.  Co.,  201 
N.  Y.  387,  94  N.  E  876,  Ann  Cas. 
1912B.  281  and  note;  Tewes  v.  N. 
German  Lloyd  S.  S.  Co.,  186  N.  Y. 
151,  78  N.  E.  864.  8  L.  R.  A.  (N.  S.) 
199n,  9  Am.  &  Eng.  Ann.  Cas.  909 
and  note. 

""A  recent  case  holding  that  a 
carrier  may  not  limit  his  liability 
against  negligence  is  Wells  v.  Great 
Northern  R.  Co.,   59  Ore.    165,   114 


o  on 


BAILMEXTS. 


§  299.  Carrier's  lien  on  baggage. — The  carrier  has  a  lien 
on  the  passenger's  baggage  in  its  possession  for  the  payment  of 
his  fare,^^  and  upon  baggage  left  in  storage,  for  warehouse 
charges/^  but  such  lien  does  not  extend  to  baggage  in  the  pas- 
senger's exclusive  possession/^  nor  is  there  a  lien  upon  a  passen- 
ger's baggage  for  the  payment  of  the  fare  of  her  infant  child.^* 
A  street  railway  has  been  held  not  to  be  an  insurer  of  baggage 
carried  on  it.^^  ! 


Pac.  92,  116  Pac.  1070,  34  L.  R.  A. 
(N.  S.)  818,  but  it  is  held  that 
though  an  opportunity  to  inform  the 
carrier  of  a  larger  amount  of  bag- 
gage than  the  limitation  was  not 
given,  yet  by  paying  full  fare  he 
might  have  imposed  full  liability  and 
the  limitation  was  good  as  against 
the  carrier's  negligence.  Gardiner  v. 
K.  Y.  Cent.  &c.  R.  Co.,  201  N.  Y. 
387,  94  N.  E.  876,  34  L.  R.  A.  (N.  S.) 
826. 

'^Elliott  R.  R.  (2d  ed.),  §  1662; 
Wolf  V.  Summers,  2  Camp.  631 ;  Rob- 
erts V.  Koehler,  30  Fed.  94. 


'"  Kressin  v.  Central  R.  Co.,  103  N. 
Y.   S.   1002. 

^Ramsden  v.  Boston  &  A.  R.  Co., 
104  Mass.  117,  6  Am.  Rep.  200; 
Lynch  v.  Metropolitan  &c.  R.  Co.,  90 
N.  Y.  n,  43  Am.  Rep.  141.  , 

^*Cantwell  v.  Terminal  R.  Assn. 
&c.  Co.,  16Q  Mo.  App.  393,  140  S.  W. 
966. 

^  Sperry  v.  Consolidated  R.  Co., 
79  Conn.  565,  65  Atl.  962,  10  L.  R.  A. 
(N.  S.)  907,  118  Am.  St.  169,  9  Am. 
&  Eng.  Ann.  Gas.  199  and  note. 


INDEX 


[References  are  to  Sections.} 

A 
ACCEPTANCE, 

See  Caebiers  of  Goods;  Carriers  of  Live  Stock;  Carriers  of  Passengers 

ANo  Baggage. 
defective  work  by  employer,  93. 

executory  nature  of  contract   until   delivery   and   acceptance,   77. 
necessity  of  acceptance  of  property  by  bailee,  8,  27. 
voluntary  nature,  27. 
■warehouseman,  97. 

ACCESSIONS, 

return,  20,  23. 

ACTION, 

See  Carriers  of  Goods  ;  Carriers  of  Live  Stock  ;  Carriers  of  Passengers 

AND  Baggage. 

bailee  against  third  party,  12,  32,  82. 

bailor  against  third  party,  39,  82,  89. 

debt  as  early  English  form  in  bailment  cases,  5ii. 

ex  contractu  for  loss  or  injury  to  goods,  22. 

form,  22. 

for  specific  performance  of  bailee's  contract,  21. 

in  tort  for  conversion  by  bailee,  13n. 
for  loss  or  injury  to  goods.  22. 

mystery  in  loss  of  goods  as  defense,  22. 

recovery  by  bailee  from  third  parties  for  destruction  of  property,  12. 
rights  of  bailee  against  bailor  or  third  person,  32. 

trespass  by  bailor  against  third  person,  lUu. 

ACT  OF  GOD, 

See  Carriers  of  Goods. 
causing  deviation  from  contracted  use,  38. 
liability  of  bailee,  40. 

AGENCY, 

See  Carriers  of  Goods. 
agent  of  bailee  causing  loss  or  injury,  82. 
application  of  principles  to  bailment,  2. 
bailee  agent  of  bailor  to  preserve  property,  4. 

AGISTERS, 

See  Animals. 
bailment  for  custody,  87. 
in  general,  107. 
lien,  94,  107. 

337 


338 


INDEX. 


IReferences  are  to  Sections.l 
ANIMALS, 

See  Carriers  of  Live  Stock. 
breaking  horse  to  work,  76n. 
duty  of  bailee  to  millc  cow,  28. 
escape  of  animal  liired  as  excuse  for  loss,  80. 
exercise  of  horse,  28. 
fastening  up  horse  hired,  80. 
hiring  horse   to  person  physically  or  mentally  incapable  of  giving 

care,  80. 
horse  lent  to  inexperienced  boy,  40. 
keeping  horse  longer  than  agreed  time,  81. 
letting  animals  on  shares,  23. 
overloading  or  overdriving  horse,  78. 
proper  food  and  drink  as  required,  SO. 
repose  as  required  to  be  afforded  horse,  80. 
shelter  as  required  to  be  provided  horse,  80. 
sickness  and  death  of  animal  as  excuse  for  loss,  80. 
turning  horse  bailed  into  dangerous  pasture  after  dark,  30a. 
young  bom  during  term  of  bailment,  41. 

ASSIGNMENT, 

See  Bills  of  Lading. 
bailee's  rights,  83. 
lien  for  compensation,  94. 

ATTACHMENT, 

against  bailor  after  transfer  of  title,  1. 

right  of  attaching  creditor  of  bailor  against  bailee,  79. 

ATTORNMENT, 
bailee,  In. 

B 

BAD  FAITH, 

See  Good  Faith. 
bailee,  30. 

BAGGAGE, 

See  Carbiebs  of  Passengebs  and  Baggage. 

BAILMENTS, 

classification,  11. 
definition,  1. 
derivation  of  term,  2. 
origin  of  law,  3. 
principles,  in  general,  6. 

BANK,  .     „, 

authority  of  cashier  to  bind  bank  on  special  deposit,  34. 

conditions  governing  special  deposit,  34. 

deposit  as  not  bailment,  26. 

forged  check  on  special  deposit,  34. 

loss  of  diamonds  received  on  special  deposit,  34n. 

of  special  deposit  by  burglars,  34. 
special  deposits,  26,  34. 
theft  by  cashier  of  gold  on  special  deposit,  34. 

BANKRUPTCY, 

pledgor,  64. 


INDEX.  339 

[References  arc  to  Scctions.'l 
BARGEMAN, 

cominou  carrier,  127. 

BATH-HOUSE  KEEPER, 
bailee,  24,  76. 

BILLS  AND  NOTES, 

collection  by  pledgee,  56. 
subject  of  pledge,  46. 

BILLS  OF  LADING, 

See  Carriers  of  Goods. 
in  general,  140-150. 
necessity,  131n,  137. 
subject  of  pledge,  46. 

BOARDER, 

distiuguislied  from  guest,   110. 

BOARDING-HOUSE  KEEPER, 

distinguished  from  innkeeper,  109. 

BONA  FIDE  PURCILISER, 

from  bailor  after  transfer  of  title,  1. 
unauthorized  sale  by  bailee,  9. 

BONDS, 

subject  of  pledge,  46. 

BRIDGE  COMPANY, 

common  carrier,  128. 

BURDEN  OF  PROOF, 

bailment,  48. 

thing  hired  not  injured  by  negligence,  SOn. 

BURGLARY, 

loss  of  special  deposit,  34. 

O 

CANAL  BOATMAN, 

common  carrier,  127. 

CANAL  COMPANY, 

common  carrier,  128. 

CAPACITY  OF  PARTIES, 

bailment,  7,  37,  77. 

CAPTOR, 

quasi  bailee,  75. 

CARE  OF  PROPERTY, 

See  Carriers  of  Goods;   Carriers  of  Live  Stock. 
circumstances  as  determining  care  reciuired,  16. 
failure  of  bailee  to  watch  gold  bailed,  30n. 

to  give  special  care  on  notice  of  necessity,  31. 
misuse  of  property  by  bailee,  13. 
mutual  agreement,  30. 
natural  deterioration  of  thing  hired,  SO. 
ordinary  wear  and  tear,  40,  81,  86. 
pledgee,  56. 


340 


INDEX. 


[References  are  to  Sections."] 

CARE  OF  PROPERTY— Continiiecl. 
private  carrier  for  hire,  122. 
registered  letter  by  liotel  clerk,  31. 
required  of  bailee,  24,  30,  36,  40,  80. 
test  of  sutticiency,  40. 

CARRIERS  OF  GOODS, 

Subject  Defined  and  Distinguished. 

accommodation  reuderiug  common  carrier  private  carrier,  126. 
bargemen  as  common  carriers,  127. 
bridge  companies  as  common  carriers,  128. 
canal  boatmen  as  common  carriers,  127. 

companies  as  common  carriers,  128, 
care  required  of  private  carrier  for  hire,  122. 
carriage  by  common  carrier  of  goods  not  in  line  of  business,  126. 
by  unusual  means,  126. 
to  points  not  on  route,  126. 
compensation  as  essential  to  liability  as  common  carrier,  126. 
contract  as  bailment,  121. 

of  private  carrier  limiting  liability  for  negligence,  122. 
death  of  employe  of  shipper  caused  by  defective  cars,  121n. 
definition  of  common  carrier,  122,  123n. 

private  carrier,  122,  122n. 
discrimination,  126u,  151,  156,  219. 

as  not  defeating  common  carrier  liability  for  loss,  126n. 
distinctions  betvpeen  public  and  private  carriers,  124-126. 
distinguished  from  other  contracts  of  bailment,  121,  202. 
draymen  as  common  carriers,  127. 
duty  to  carry,  124,  151. 
election  to  sue  in  contract  or  in  tort,  121. 

elements  necessary  to  constitute  carrier  common  carrier,  124-126. 
express  companies  as  common  carriers,  127. 
facilities  required  of  railroad  company,  127n. 
ferrymen  as  common  carriers,  127. 

fixed  terminals  as  not  essential  to  liability  as  common  carrier,  126. 
flatboatmen  as  common  carriers,  127. 
forwarders  as  common  carriers,  127. 
goods  required  to  be  transported,  126,  128. 
gratuitous  carriage  by  private  carrier,  122. 
hacks  as  common  carriers,  127. 
kinds,  127,  128. 

lightermen  as  common  carriers,  127. 
livery-stable  keepers  as  common  carriers,  128. 
log-driving  companies  as  common  carriers.  128. 
messenger  companies  as  common  carriers,  128. 
obligations  of  common  carrier  to  public,  122,  124,  126. 

of  private  carrier  to  public,  122. 
omnibus  as  common  carrier,  127. 
postofRoe  not  common  carrier,  128. 
private  carriers.  123. 
raftmen  as  common  carriers,  127. 
railroads  as  common  carriers,  127,  128. 
receiver  of  railroad  as  common  carrier,  127. 
refusal  to  carry,  121,  124,  126. 
selection  of  carrier  by  bailee.  30n. 
sled  as  common  carrier.  127. 
special  contract  rendering  common  carrier  private  carrier.  120,  128. 


INDEX. 


341 


[References  are  to  Sections.2 

CARRIERS  OF  GOODS— Contiuuea. 

stage-coach  as  common  carrier,  127. 

street-cars  as  couimou  carriers^,  127. 

telegraph   aud  telephone  companies  as  common  carriers,  128 

transfer  company  as  common  carrier,  127n. 

transportation  of  cii«cus  train,  128. 

of  special  train,  128. 
truckmen  as  common  carriers,  127. 

trustee  of  railroad  as  under  duties  of  common  carrier,  127. 
tug  and  towing  boats  as  common  carriers,  128. 
turnpike  companies  as  common  carriers,  128. 
warehousemen  as  common  carriers,  127. 
water-craft  as  common  carriers,  125,  127,  128. 
wharfingers  as  common  carriers,  127. 

what  determines  whether  carrier  public  or  private,  124,  126. 
whether  regular  trips  essential  to  liability  as  common  carrier,  126. 
who  are  not  connnon  carriers,  128. 
Creation  of  Relation  and  Beginninrj  of  Liability. 
abandonment  of  control  by  ownei*.  136,  137. 
absence  of  notice  that  envelope  contains  money,  139n. 
acceptance  of  goods  by  carrier,  130,  136,  1.39. 
apparent  authority  to  receive  goods  for  carrier,  134. 
authority  of  agent  to  contract  for  shipment  from  another  place,  134. 

of  station  agent  to  make  through  contract,  250. 

to  contract  to  furnish  cars,  153. 
beginning  of  carrier's  liability,  130,  131,  136,  248. 
bill  of  lading  not  necessary,  131n,  137. 
burden  of  proving  agent's  authority  as  to  shipment  from  another 

place,  134. 
by  whom  delivery  to  carrier  made,  133. 
carrier  as  trustee  for  owner,  222. 

may  not  contract  against  conversion,  lOS. 

not  liable  where  goods  not  furnished  within  reasonable  time. 
162. 
carrier's  right  to  know  character,  224. 

checking  of  baggage  as  not  essential  to  complete  delivery,  137. 
completion  of  delivery.  136. 
consignee's  right  to  sue  in  own  name,  133. 
consignor  as  agent  of  consignee,  133. 
constructive  delivery,  49,  135. 

notice  to  carrier  of  delivery,  1.37. 
contracts  as  locatio  operis  bailment.  87. 

by  agent  for  shipment  from  different  station,  134.  - 

of  shipper,  133. 

distinguished  fi'om  other  bailments,  121. 

implied  when  accepted  for  carriage,  122. 

one  of  bailment,  121,  123. 

through  agents,  2. 
creation  of  relation,  130-139. 
credit  as  not  required  to  be  extended,  139. 
dangerous  character  as  ground  for  refusing  goods,  139. 
deck-hand  as  not  agent  to  receive  deliveiy,  134. 
delivery  and  acceptance,  136. 
delivery  by  whom  made,  1.33. 

of  baggage  check  by  one  carrier  to  another,  135. 

of  receipt  when  goods  accepted,  1S7. 

of  warehouse  receipts  as  not  delivery  of  goods,  135. 


342  INDEX. 

[References  are  to  Sections."] 

CARRIERS  OF  GOODS— Continued. 

to  connecting  carrier,  188,  253. 
depositing  goods  on  carrier's  private  wliarf,  135. 

liay  at  usual  place  of  loading,  135. 
directions  by  agent  of  shipper,  133. 

dog  not  required  to  be  carried  by  uoncarrier  of  dogs,  139n. 
drayman  as  agent  of  carrier  to  receive  delivery,  133,  134, 
duty  of  carrier  to  ascertain  whether  goods  of  dangerous  character, 
139. 

of  shipper  to  disclose  value,  lS9n. 

to  furnish  cars  suitable  to  particular  classes,  155. 

to  furnish  sufficient  accommodations,  153. 

to  notify  carrier  of  explosives  shipped,  139. 
to  receive  goods  offered,  130,  139. 
elements  necessary  to  constitute  relation,  126. 
entry  on  waybill  unnecessary  to  complete  delivery,  137. 
excessive  crop  as  ground  for  refusal,  139. 
extraordinary  danger  of  loss  as  ground  for  refusal,  139. 
failure  to  notify  shipper  of  unusual  press  of  business,  139. 
false  valuation  of  goods  by  shipper,  189. 
formal  acceptance  by  carrier  unnecessary,  136. 
form  of  delivery,  131. 
fraud  of  shipper,  206. 

goods  refiuired  to  be  accepted  for  carriage,  139. 
handler  of  baggage  presumably  agent  of  carrier,  134. 
implied  acceptance  by  carrier,  137. 

contract  between  carrier  and  shipper,  121,  180. 
obligation  of  shii>  master  to  act  as  agent  of  owner,  223, 
improper  packing  as  ground  for  refusing  goods,  139. 
initial  carrier  as  agent  to  deliver  to  second  carrier,  133. 
injury  to  carrier  from  goods  of  dangei'ous  character,  139. 
insufficiency  of  cars  caused  by  use  by  other  road,  139. 
kinds  of  contracts  for  carriage  of  goods,  4. 
law  governing  carriage  contracts,  200. 
leaving  cotton  on  or  near  platform,  135. 

trunli  in  waiting-room  of  station,  135. 
mob  as  ground  for  refusal  of  goods,  139. 
necessity  of  delivery  and  acceptance  of  goods,  130. 
nonpayment  of  freight  in  advance  as  ground  for  refusal,  139. 
,  notice  of  agent's  lack  of  authority  to  bind  principal,  195. 

of  delivery,  137. 

to  carrier  of  dangerous  character  of  goods,  139. 
order  of  owner  to  delay  transportation,  131. 
place  of  delivery  of  goods,  132,  191. 

placing  trunk  beside  baggage  crate  and  informing  ticket  agent,  134. 
powers  of  shipper's  agent,  133. 

press  of  business  as  ground  for  refusal  of  goods,  139. 
presumption  by  carrier  on  delivery  by  shipper's  agent,  133. 

that  common  carrier  is  common  carrier  of  money,  139n. 
purpose  of  delivery  to  carrier,  131. 
receipt,  when  goods  accepted,  187. 
refusal  to  receive  and  transport  goods,  130,  139. 
release  from  common-law  liability  by  agent  of  shipper,  133. 
requiring  prepayment  in  only  some  cases  as  not  discrimination,  139. 
right  to  demand  disclosure  of  nature  of  goods,  139,  224. 
selection  by  shipper  renders  carrier  not  liable  for  injuries  to  live 
stock,  259. 


INDEX. 


343 


[References  are  to  Sections.'] 

CARRIERS  OF  GOODS— Continued. 

of  defective  care  by  consignor,  133. 
shipper  bound  after  delivery  and  acceptance,  207. 
shipper's  failure  to  deliver,  133,  225. 
special  property  in  goods,  and  rights  as  bailee,  220. 
strike  as  ground  for  refusal  of  goods,  13'Jn. 

switching  limits  as  included  in  comuion  carrier's  territory,  139. 
time  of  delivery,  131. 
waiver  of  riglit  of  refusal,  139. 

want  of  authority  to  deliver  goods  as  ground  for  refustil,  139. 
warehouse  receipts,  135n. 
when  prepayment  of  freight  required,  139. 
Bills  of  Lading. 

agent  unauthorized  to  give  bill  of  lading,  142. 
assent  to  irregular  issue  of  bill  of  lading,  147. 
bill  of  lading  as  evidence  of  title,  149. 

as  receipt,  143. 
clause  providing  lien  construed  with  cesser  clause,  216. 
construction  of  special  clauses,  214. 
contracts  to  carry  within  certain  time,  1G2. 
evidence  of  title,  149. 
general  discussion,  140-150. 

misconstruction  of  bill  of  lading  by  shipper,  161. 
recitals  as  to  condition   or   character,  144. 
Duties  and  Liabilities  of  Carriers. 

accident  avoidable  but  for  delay,  169. 

paused  by  delay,  169. 
accrued  damages  as  not  within  bill  of  lading,  201n. 
action  by  consignee  for  breach  of  contract,  133. 
act  of  God  as  release  from  liability,  167,  170. 

of  public  enemy,  171. 
authority  to  sell  goods,  223. 
burden  of  proof,  170. 
care  of  goods  according  to  character,  152. 

of  goods  in  emergency,  163. 
carrier's  liability  for  injuries  while  in  possession,  220. 

for  loss,  164. 
carrier's  right  to  insure,  222. 
choice  of  route,  158. 

compensation  of  connecting  carriers.  252. 
compliance  with  notice  as  condition  precedent  to  shipper's  right  to 

recover,  193. 
connecting  carrier,  247. 

defined,  248. 
connecting  carriers  as  agents  of  owner  of  goods,  253. 
consideration   for  agent's  contract  to  furnish  car,  153. 
construction  of  clauses  permitting  delay  or  deviation,  161. 
contracts  for  through  carriage,  249,  250. 
contract  to  carry  within  certain  time,  162. 
conversion  when  goods  unnecessarily  sold,  223. 
death  of  employe  of  shipper  caused  by  defective  car,  122. 
defect  in  carrier's  vehicle  as  not  defense,  154. 
defenses  where  goods  converted,  190. 
degree  of  care,  16. 
delay  in  transportation  of  goods,  176,  177. 

press  of  business,  139. 


344  INDEX. 

[References  are  to  Sections.'] 

CARRIERS  OF  GOODS— Continued. 

delivery  to  connecting  carriers,  247. 

initial  carrier  to  use  diligence,  253. 
deviation  from  route,  168. 

from  special  contract,  160. 
duties  and  liabilities  generally,  151-179. 

as  to  manner  of  carriage,  157. 

implied  in  contract,  152. 
duty  of  intermediate  carrier,  252. 

of  water  carriers,  157. 

to  choose  safest  of  several  routes,  159. 

to  delay,  179. 

to  furnish  cars  suitable  to  particular  freight,  155. 

to  furnish  refrigeration  when  needed,  155n. 

to  furnish  sufficient  facilities,  153,  154,  156. 

to  obey  shipper's  directions,  158. 

to  transport  cars  of  other  companies,  156. 

to  use  reasonable  care,  152. 
effect  of  deviation  from  special  contract  on  limitation  of  liability,  160. 
excuses  for  delay,  178,  179. 
exposure  of  goods  to  danger  in  transit,  168. 
extent  of  liability  for  loss  or  injury  to  shipment,  166,  167. 
extraoi'dinary  liability  as  bailee,  129. 
'    failure  to  furnish  cars,  153. 
freezing  of  oranges  through  failure  to  carry  boxes,  153n. 
goods  destroyed  by  act  of  God  after  refusal  by  connecting  carrier, 
168n. 

injured  by  contact  with  goods  of  dangerous  character,  224. 
by  third  persons,  220. 
goods  negligently  exposed  to  public  enemy,  171. 

seized  under  legal  process,  172. 
illustrative  cases  of  carrier's  nonliability  as  insurer,  188. 
implied  duties  under  contract,  152. 

inherent  defects  in  property  discharging  promise  of  safe  delivery,  174. 
injuries  to  goods  while  in  possession  of  carrier,  220. 
insurable  interest  in  property,  222. 
liability  as  insurer,  4,  124,  129,  140,  152,  164,  165,  176,  237.       <    • 

for  loss,  164. 

of  connecting  carrier  to  consignee,  251. 

where  usual  and  customary  route  followed,  159. 
local  agent's  implied  authority  to  contract  to  furnish  cars,  153. 
loss  by  act  of  shipper,  173. 
by  flood,  168. 

by  public  authority,  164,  172. 
by  public  enemy,  129.  171. 
by  thieves,  robbers,  etc.,  100. 
loss  during  detention  of  goods  by  customs  officials,  244. 
manner  of  caxTiage,  157. 

Massachusetts  rule  as  to  liability   as  insurer,  234. 
mutual  character  of  agent's  contract  to  furnish  cars,  153. 
negligence,  121,  126. 
notice  to  shipper  of  inability  to  furnish  facilities,  153. 

of  necessity  of  delay,  153. 
notice  where  carrier  knew  of  destruction  by  fire,  192. 
not  negligence  when  following  well-known  custom,  155n. 
preference  to  shipper,  154,  156. 
press  of  business  as  ground  for  refusal  of  goods,  153. 


INDEX. 


345 


[References  arc  to  Sections.} 

CARRIERS  OF  GOODS— Continuea. 

IJresumption  that  last  carrior  in  fault,  251. 
private  carrier  liable  for  ordinary  care  only,   123. 
recovery  of  possession  from  owner  by  carrier,  221. 
special  circumstances  increasing  duty  not  to  delay,  177, 

duties  under  special  contract,  100. 
statutory  duty  to  sell  perishable  freight  upon  consignee's  refusal  to 
receive,  163n. 

exceptions  to  liability,  175. 
subrogation  of  carrier  to  owner's  rights,  221. 
time  for  bringing  suit  where  goods  lost  by  «arrier,  191. 
transportation  of  liquor  into  state  where  made  unlawful  by  statute, 

156n. 
when  authorized  to  sell  goods,  223. 
Limitation  of  Liahility. 

acts  preventing  benefit  of  contract  limitations,  198. 

agreements  to  exempt  from  liability,  ISS. 

amount  of  liability,  ISO. 

assent  presumed  from  shipper's  acceptance  of  receipt,  183. 

from  shipper's  signature,  189. 
authority  of  agent  to  limit  liability,  195. 

benefits  of  limitation  contract  between  connecting  carriers,  199. 
burden  of  proof  as  to  reasonableness  of  limitations,  193. 
carriage  of  live  stock,  254,  261. 
character  of  limitations  in  carrier's  contract,  188. 
compliance  with  notice  a  condition  precedent  to  shipper's  right  to 

recover,  193. 
conflict  of  laws  as  to  construction  of  contracts  limiting  liability,  200. 

time  of  bringing  suit  on  carriage  contract,  200. 
consideration  for  contract  limiting  liability,  201. 
construction  of  contracts  limiting  liability,  196. 

exceptions  in  bills  of  water  carriers,  197. 
contract  of  carriage  of  passengers,  286,  287. 
contracts  against  liability  for  misfeasance,  198. 

for  servant's  felony,  188. 

in  case  of  news  agent,  287. 
contracts  for  through  carriage,  250. 
essentials  of  contract  limiting  liability,  182. 
limitation  by  contract,  180-181. 

by  notice,  181. 

printed  on  baggage  check,  186. 
negligence,  194,  298. 

passenger  carrier,  287. 
notice  informing   shippers  of  regulations,   185. 
parol  limitation  of  liability,  184. 
parties  to  contract  limiting  liability,  184. 
presumption  of  knowledge  of  terms  of  contract  limiting  liability,  186. 

of  shipper's  assent  to  contract,  183,  186,  189n. 
ratification  by  connecting  carrier  of  initial  carrier's  contract,  250. 
statutory  prohibition  of  right  to  limit  liability,  182. 
terms  of  limitation  of  liability  must  be  part  of  contratc,  186. 
time  of  claim  for  loss,  191. 
waiver  of  limitation  of  liability,  192. 

stipulation  regarding  notice,  192. 
what  is  special  contract  limiting  liaTjility,  183. 


346 


INDEX. 


[References  are  to  Sections.1 

CARRIERS  OF  GOODS— Coutinued. 
Compensation  and  Lien. 

acceptance  of  rate  by  interstate  commerce  commission,  205n. 
agency  to  collect  wliere  goods  sent  C.  O.  D.,  242. 
calculation  pro  rata  itiueris,  209,  210. 
charges  for  special  services,  218. 
C.  O.  D.  shipments,  242,  243. 

compensation  for  use  of  cars  where  consignee  fails  to  unload  accord- 
ing to  custom,  217. 

governed  by  contract,  204. 
of  connecting  carriers,  252. 
defenses  iu  actions  for  demurrage,  217n. 
demurrage,  213,  214,  217. 
water  carriers,  213. 

where  contracts  silent  as  to  time  of  unloading,  215. 
discrimination  in  charges,  219. 
freight  pro  rata  itiueris,  209. 

goods  sold  by  carrier  without  consulting  owner,  209. 
liens,  226. 

for  demurrage,  213,  216. 
on  government  consignment,  226. 
priority,   226. 
methods  of  calculating  freight  charges,  208-210. 

freight  pro  rata  itineris,  210. 
on  what  goods  carrier  entitled,  203. 
rebates  on  interstate  shipments,  201. 

recovei'y.  219. 
right  of  legislature  to  prescribe  freight  rates,  219. 
right  to  compensation,  202,  204,  276. 

dependent  on  completion  of  service,  212. 
on  lost  goods,  203. 

where  ship  captured  by  public  enemy,  211. 
right  to  demand  proper  amount  where  lower  rates  charged  by  mis- 
take, 219. 
shipper's  rights  where  charges  unreasonable,  204. 
tender  to  carrier  discharges  lien,  226. 
transshipment  at  rate  different  from  original  rate,  211. 
unreasonable  rates,  204. 

when  carrier  may  make  terminal  charges  for  delivery,  264. 
when  charges  required  in  advance,  139. 
when  right  to  sue  for  charges  accrues,  212. 
who  must  pay,  207. 
Termination  of  Relation  of  Carrier. 

abandonment  or  completion   of  contract  of  carriage,  190. 
acceptance  of  goods  by  agent  of  owner,  209. 
care    on    becoming    warehouseman,    239. 
carrier's  delivery  as  warehouseman,  231. 

right  to  demand  receipt  for  delivery,  246. 

to  refuse  for  bill  of  lading  not  produced,  149. 
commencement  of  liability  as  warehouseman,  238. 
consignee  presumed  owner  of  goods  and  prima  facie  liable,  207. 
consignee's  obligation  to  unload,  238. 

right  to  inspect  when  sent  C.  O.  D.,  243. 
custom  as  to  delivery  of  goods,  228. 
delivery  according  to  bill  of  lading,  228. 
as  warehouseman.  231. 
by  express  company,  240. 


IXDEX. 


347 


iRcfcrcnccs  arc  to  Sections.'] 

CARRIERS  OF  GOODS— Continued. 

by  railroads,  233. 

by  water  carriers,  232. 

to  agent  of  consignee,  228. 

to  right  person,  134,  228. 

where  carrier  has  no  station,  230. 

consignee  agent  of  owner,  243. 
duty  of  water  carrier  t(j  d(>fend  suit  where  goods  seized,  243. 

to  notify  owner  of  seizure  of  goods,  244. 
excuses  for  nondelivery,  244. 

legal  process  against  owner  as  excuse  for  nondelivery  of  goods   244. 
liability  as  warehouseman,  101,  165,  188,  231,  238,  239,  242,  2o2,  253, 
293. 

where  goods  misdirected,  228. 
Massachusetts,    New    Hampshire    and   New    York    rules   concerning 

termination  of  liability,  234-236. 
New  York  rule  concerning  consignee's  duty  to  remove,  23G. 
notice  of  arrival  of  goods,  234,  237. 

to  consignee's  agent  of  arrival  of  goods,  232,  237. 

to  consignor  where  consignee  refuses  to  accept  goods,  241. 
offer  to  deliver  part  of  goods  terminates  relation  of  carrier  as  to 

goods   refused,  231n. 
personal  delivery,  228. 
place  of  delivery  to  consignee,  229,  2.30. 
ratification  of  wrongful  delivery  by  carrier,  228. 
receipt  on  delivery,  187.  246. 
removal  of  goods  on  holiday,  232. 

right  as  warehouseman  to  charge  for  protection  of  goods,  239. 
rules  concerning  termination   of  liability  and  necessity  for  notice, 

234-2.36. 
Stoppage  in  transitu  as  ending,  189. 

as  excuse  for  nondelivery,  245. 
termination  of  relation,  227-253. 

CARRIERS  OF  LIVE  STOCK. 

common  carriers  of  live  stock,  122n,  175n,  254-264. 
degree  of  care  of  live  stock  in  transit,  259. 
delivery   of   live    stock,   263. 

to  connecting  carriei",  264. 
duty  as  to  accommodations  for  live  stock,  257. 

pens  for  live  stock,  256. 

to  carry  live  stock,  255. 
exemption  from  liability  for  injury  to  stock,  188. 
Injury  to  animals  by  defective  cars,  2.^>7. 
interstate  commerce  regulations  on  carriage  of  animals,  262. 
liability  of  carrier  of  live  stock,  259,  261,  264. 

where  shipper  fails  to  accompany  stock  as  agreed,  261. 
loading  and  unloading  live  stock,  2.58. 
loss  or  delay  of  live  stock  in  transit,  254.  259n,  260. 
place  of  reception  of  live  stock  for  transportation,  256. 
selection  of  defec-tive  cars  by  shipper,  259. 
special  contract  of  carriage  for  live  stock,  260,  261. 

loading  and  unloading,  2.58. 
statutory  regulations  on  carriage  of  live  stock.  262. 
termination  of  live  stock  carrier  relation,  262,  263. 


348 


INDEX. 


[References  are  to  Sections.'] 

CARRIERS  OF  PASSENGERS  AND  BAGGAGE. 

acceptance  of  passengers,  269. 

accommodations  required  of  railroads,  271. 

autliority  of  master  of  ship,  292. 

care  required  in  carriage  of  passengers,  2G5u,  271,  273. 

of  sleeping  and  parlor  car  companies,  290. 
carriage  of  baggage,  293,  297. 

baggage  defmed,  294,  295. 

lien  on  baggage,  299. 

limitation  of  liability,  297,  298. 

loss  of  baggage,  293,  298. 

when  delivery  of  baggage  check  a  delivery  of  goods,  114. 

received  after  train's  departure,  298. 

on  pass,  269,  286. 
carriers  of  passengers  by  water,  292. 
conditions  on  back  of  ticket,  278. 

conductor  to  heed  explanations  where  ticket  lost,  279. 
contract  with  gratuitous  passenger  against  negligence  of  servants, 

194n. 
creation  of  passenger  relation,  268. 
duty  to  give  alighting  passenger  instructions,  289. 

to  light  stations  at  night.  271. 

to  protect  passengers  from  third  persons,  272. 

to  stop  at  stations,  289. 
ejection  of  disorderly  persons,  275. 

failure  to  comply  wuth  regulations  or  because  of  faulty  ticket, 
275,  278. 

invalidity  of  ticket,  278n. 
election  of  remedies  for  injury,  122n. 
employes  of  sleeping-car  company  as  passengers,  269. 
exaction  of  fare  in  advance,  274. 
excursion  and  round  trip  tickets,  283. 
fare  of  passengers,  269,  276. 
general  duties  and  liabilities,  265-299. 
holders  of  sleeping-car  tickets,  270. 

injuries  to  passenger  attempting  to  board  conveyance,  269. 
insult  of  passenger  by  employe,  272. 

rape  committed  by  employe,  272. 
invalid  tickets,  278. 
kinds  of  passenger  carriers,  266. 
legality  of  provisions  in  tickets,  287. 
liability  to  occupants  of  sleeping  car,  290. 
limitation  of  liability  in  pass,  286. 

of  tickets,  281. 
loss  of  ticket,  279. 

merchandise  carried  as  baggage,  296. 
mistake  in  issuing  passenger  tickets,  278. 
mistakes  in  transfers,  285. 

of  ticket  agent,  275,  275n,  289. 
mutilated  tickets,  284. 

notice  of  change  of  trains  to  holder  of  through  ticket,  289n. 
passenger  carrier  as  insurer,  265. 
passengers  defined.  266,  268,  269. 

on  special  trains  made  up  of  sleeping  cars,  270. 

to  have  sufficient  time  to  alight,  289. 
passes,  286. 
police  officer  carried  free  under  invalid  city  ordinance,  269n. 


IXDEX. 


349 


IRcfcrcnccs  are  to  Scctions.1 

CARRIERS  OF  PASSENGERS  AND  BAGGAGE— Coutinued. 
posting  notice  of  carrier's  rules  aud  regulations,  274. 
rebuttal  of  presumption  of  carrier  aud  passenger  relation,  2G9. 
refusal  to  pay  fare  until  baggage  checked,  274. 

to  sell  sleeping-car  berth,  27Un. 
reliance  of  passenger  on  representations  of  station  agent,  277,  280. 
on  information  from  agent  concerning  routes.  277n. 

on  sign  on  street  car,  2S0. 
rules  and  regulations  for  transportation  of  passengers,  274. 
sale  of  invalid  tickets,  27S. 
sleeping  and  parlor  car  companies,  290,  291. 
sleeping-car  tickets,  201. 
stopover  privileges  on  ticket,  280. 
street-railroad  transfers,  285. 
tender  of  fare  by  passenger,  274,  274n. 

worn  coin  as  fare,  274n. 
termination  of  passenger  relation,  288,  28Sn. 
through  tickets,  280. 
time  limitations  of  tickets.  281. 
transfer  of  tickets,  282. 
violation  of  duty  toward  passenger  considered  as  breach  of  contract 

or  tort.  273. 
water  carriers,  292. 
who  must  be  carried  by  passenger  carrier,  267. 

CASK, 

careless  carrying  of  cask  bailed,  SOn. 

CHARACTER  OF  BAILMENT  RELATION, 

in  general,  2. 

CHATTEL  MORTGAGE, 

distinguished  from  pledge,  43. 
subject  of  pledge,  40. 

CHOSE  IN  ACTION, 

subject  of  bailment,  2,  6n. 
of  pledge,  46. 

CLASSIFICATION, 

bailments,  14. 

gratuitous  bailments,  4,  24. 

CLERK  OF  COURT, 

gratuitous  bailee,  26. 

CLOTHING  MERCHANT, 

bailee,  24,  76,  85. 

COLLATERAL  SECURITIES, 

See  Pledges. 

COMMISSION  MERCHANT, 

bailee,  104. 

COMMODATE, 

distinguished  from  contract  of  hiring  use,  76. 
in  general,  36. 


350  INDEX. 

^References  arc  to  Sections.l 

COMMON  CARRIERS, 

See  Carriebs  of  Goods;  Carriers  of  Live  Stock;  Carriers  of  Passengers 

AND  Baggage. 

COMPENSATION, 

See  Carriers  of  Goods. 
bailor  hiring  for  use,  86. 
duty  of  owner  of  lost  goods,  33. 
use  of  property,  13. 

COMPOUND  BAILMENT, 
definitiou,  19. 

CONFLICT  OF  LAWS, 

contract  of  carriage,  200. 

CONSENT, 

bailee  to  transfer  of  title  by  owner,  10. 
owner  as  necessary  to  creation  of  relation,  37. 
person  to  be  bailee,  8,  27n. 

CONSIDERATION, 

gratuitous  bailment  for  benefit  of  bailor,  29. 
in  general,  5,  37,  77. 
pledge,  45. 

CONTRACTS, 

See  Implied  Contract. 
application  of  general  rules,  2,  77. 
bailee  against  liability  of  act  of  agent  or  servant,  IS. 

misconduct  or  negligence,  IS. 

with  third  person  for  services,  28. 
capacity  of  pai'ties.  7,  37,  77. 
deposit,  26. 

determining  rights  of  parties,  77. 
duty  of  bailee  to  perform,  29. 
necessary  to  creation  of  mandate,  25. 
necessity  to  create  relation,  2,  2n,  8,  37. 
special  contract,  14,  18. 
warehouse  receipt,  99. 

CONVERSION, 

See  Trover  and  Conversion. 

CORPORATIONS, 

contract,  7. 

income  of  stock  loaned,  41. 

stock  as  subject  of  pledge,  46. 

CORPOREAL  PROPERTY, 
subject  of  bailment,  6. 

CUSTODY, 

bailments,  95-120. 

CUSTOMS  AND  USAGES, 

sufficiency  of  bailee's  diligence,  30. 
to  interpret  warehouse  receipt,  99. 


INDEX.  351 

[References  arc  to  Seciions.1 

D 
DAMAGES, 

liability  of  bailee  for  damages  to   material,  03. 

receiving  article  on  redelivery  as  not  mitigating  damages,  80. 

unauthorized  use  of  property,  86. 

DANGER, 

assumption  by  bailee,  32. 

exposure  of  bailee,  15. 

failure  of  bailor  to  warn  bailee,  32. 

turaing  borse  bailed  into  dangerous  pasture  after  darli,  30n. 

unforeseen  danger  in  executing  contract,  32. 

DEATH, 

termination  of  relation,  21,  64. 

DEBT, 

discharge  by  conversion  of  pledge,  58. 

distinguished,  23. 

early  English  form  of  action  in  bailment  cases,  5n. 

subject  of  bailment,  2. 

vehat  debt  may  be  secured  by  pledge,  45. 

DEFECTS, 

failure  of  bailor  to  disclose,  15,  39,  78. 

DEFINITIONS, 

agister,  107. 

baggage,  293,  297. 

bailee,  7. 

bailment,  1,  In. 

bailor,  7. 

commission  merchant,  104. 

commodate,  36. 

common  carrier,  122,  123n. 

compound  bailment,  19. 

connecting  carrier,  248. 

deposit,  26. 

derivation  of  term  "bailment,"  2. 

factor,  104. 

gratuitous  bailment  for  benefit  of  bailor,  24. 

guest,  110. 

innlieeper,  109. 

mixed  bailment,  19. 

pledge,  42. 

private  carrier,  122,  122n. 

warehouseman,  96,  96n. 

DELAY, 

See  Carriers  of  Goods  ;  Cakbiers  of  Live  Stock  ;  Carriers  of  Passengebs. 

AND  Baggage. 

DELIVERY, 

See  Carriers  of  Goods  ;   Carriers  of  Live  Stock. 
actual,  2,  8. 
by  operation  of  law,  8. 
constructive,  2,  8,  27,  40.  135. 

notice  to  carrier,  137. 
executory  nature  of  contract  until  delivery  and  acceptance,  77. 


352  INDEX. 

[References  are  to  SecUons.l 

DELIVERY— Continued. 

failure  of  bailee  to  deliver  property  to  true  owner,  11. 

goods  delivered  to  be  manufactured  and  to  have  product  returned, 

23,  23n. 
implied  contract,  2. 
in  general,  27. 
in  pledge,  48,  53. 
necessity,  8. 

negligent  delivery  to  wrong  person  by  bailee's  agent,  21n. 
physical,  27. 

place  of  delivery  to  carrier,  132,  191. 
possession,  88. 

receipt  of  articles  by  bailee  in  sealed  package,  31. 
to  true  owner  as  excuse  for  nonredelivery  to  bailor,  11. 
to  warehouseman,  97. 
what  necessary  to  completion,  8. 

DEPOSIT, 

contract  relation,  26. 
implied  contract,  2G. 
In  general,  26. 
involuntary,  26,  27. 
principal  object,  24. 
quasi  deposit,  26. 
restricted  meaning,  26. 
Roman  depositum,  26. 

DIAMONDS, 

loss  by  bank  of  special  deposit,  34n. 

DILIGENCE, 

circumstances  as  determining  sufficiency,  30,  31. 

custom  determining  sufficiency,  30. 

lack  of  diligence  in  bailee  as  negligence,  80. 

letter  in  giving  notice  of  defects,  78. 

required  of  bailee,  16,  30,  31,  80,  90. 

test  of  sufficiency,  30. 

what  constitutes  great  diligence,  16. 

ordinai-y  diligence,  16n,  80. 

slight  diligence,  16. 

DRAYMAN, 

common  carrier,  127. 

DURESS, 

effect  on  contract,  37,  77. 


E 

ELEMENTS  OF  RELATION, 

in  general,  2,  2n,  9. 

EMBEZZLEMENT, 

theft  by  bank  cashier  of  gold  on  special  deposit,  34. 

ESTOPPEL, 

bailee  to  assert  title  against    bailor,  11,  17. 

by  warehouse  receipt,  98. 

purchaser  from  bailee  to  assert  title  against  bailor,  11. 


INDEX.  353 

[References  arc  to  Sections.l 
EVIDENCE, 

suit  against  bailee  for  conversion,  llu. 

EXCEPTIONAL   BAILMENTS, 

See  Innkeepers  ;  Post  Office, 
In  general,  108-120. 

EXECUTOR, 

right  to  pledge  property  of  estate,  47. 

EXHIBITION, 

*  bailment  of  property  for  purpose  of  exhibition,  76,  84. 

EXPENSES, 

connected  with  use  of  thing  loaned,  38. 

duty  of  owner  of  lost  goods  to  compensate  finder,  33. 

extraordinary  expenses  in  preservation  of  article,  38,  39. 

gratuitous  bailee,  28. 

in  general,  80. 

liability  of  bailee  and  bailor,  14. 

on  property  bailed,  14. 

operis  bailment,  91. 

preservation  of  pledge,  55. 

EXPRESS  COMPANY, 

common  carrier,  127. 

P 

FACTOR. 

bailee,  104. 

right  to  pledge  principal's  goods,  47. 

FERRYMAN, 

common  carrier,  127. 

FINDER, 

See  Lost  Goods. 
FLATBOATMAN, 

common  carrier,  127. 

FORGERY, 

chectk  on  special  bank  deposit,  34. 

FORWARDER, 

common  carrier,  127. 

FRAUD, 

effect  on  contract,  37,  77. 
shipper,  206. 

FREIGHT, 

See  Caeeiebs  of  Goods  ;   CARBiBats  of  Lite  Stock. 


G 

GIFT, 

distinguished,  23. 

GOLD, 

failure  to  watch  gold  bailed,  30n. 

theft  by  bank  cashier  of  s])ecinl  deposit,  34. 


354  INDEX. 

[References  are  to  Sections.'] 
(iOOD  FAITH, 

See  Bad  Faith. 
bailee,  17,  40,  79. 

GRATUITOUS  BAILMENT  FOR  BENEFIT  OF  BAILEE, 
in  general,  36-41. 

GRATUITOUS   BAILMENT  FOR  BENEFIT  OF   BAILEE, 
in  general,  24-35. 

GRATUITOUS  LOANS, 
in  general,  36. 

GUESTS, 

See  INNKEEPEBS. 

H 
HACK, 

common  carrier,   127. 
hiring  carriage,  121-299. 
custody,  95-120. 
in  general,  75. 
services,  87-94. 
special  classes,  84,  85. 
use,  76-86. 

what  chattels  may  be  hired,  76. 
HOTELS, 

See  Innkeepers. 
care  of  registered  letter  by  clerk,  31. 

I 
IGNORANCE, 

See  Knowledge. 
IMPLIED  CONTRACT, 
bailment,  77. 

between  carrier  and  shipper,  121,  ISO. 
creating  deposit,  26. 

mandate,  25. 
delivery,  2. 
in  general,  2. 
one  under  disability,  7. 
operis  bailment,  88. 
redeliver}',  2. 

IMPROVEMENTS, 

bailment  by  conditional  vendee,  9n. 

INCORPOREAL  PROPERTY, 

subject  of  bailment,  2,  6. 

INEVITABLE  ACCIDENT, 

causing  loss  or  iujuiy,  40,  SO,  86. 

INFANT, 

contract,  7. 

defense  to  conversion,  81. 

INNKEEPERS, 

act  of  God  as  excuse  for  loss  of  goods,  113. 

public  enemy  as  excuse  for  los  sof  goods,  113. 


INDEX. 


355 


[References  arc  to  Sections.'} 

INNKEEPERS— Contimiecl. 

begiuuiug  of  liability  for  baggage,  111. 

of  relatiou  of  guest,  111. 
boarding-house  auQ  lodgiug-house  keepers  distinguished,  109. 
cafelieeper,  109. 
care  iu  expelling  person  from  inn,  IIG. 

of  registered  letter  by  hotel  clerk,  31. 
consent  to  party's  becoming  guest,  111. 
construction  of  notice  of  limitation  of  liability  for  goods,  115. 

of  statutes  permitting  limitation  of  liability  for  goods,  115. 
contributory  negligence  of  guest  as  defense  to  loss  of  goods,  113,  115. 
defective  elevator  iu  inn,  116. 
detinitiou,   109. 

of  guest,  110. 
duty  to  receive  all  comers,  112. 
enforcement  of  lien,  117. 
European  plan  hotel,  109,  111. 
extinguishment  of  lien,  117. 
extraordinary  bailee  for  custody,  4,  IG,  87,  108. 
failure  of  guest  to  give  notice  of  termination  of  relation,  118. 

to  pay  charges,  118. 
farmer  entertaining  traveler,  109. 
fire  as  excuse  for  loss  of  goods,  113. 
for  what  goods  innkeeper  liable,  114. 
gratuitous  bailee,  119. 

guest  distinguished  from  lodger  or  boarder,  110. 
history  of  inns,  108. 

inherent  nature  as  excuse  for  loss  of  goods,  113. 
liability  as  to  forwarding  packages,   119. 

for  goods  of  guest,  113-115. 

for  safety  and  protection  of  guest,  IIC. 
lien,  117. 

limitation  of  liability  for  goods  of  guests,  115. 
loss  of  lien,  117. 
misconduct  of  guest,  118. 
neighbor  as  guest,  110,  111. 

notice  of  limitation   of  liability  for  goods,  115. 
ordinary  bailee,  119. 

parties  whom  innkeeper  may  exclude,  112. 

patron  of  sea  bathing-house  kept  by  innkeeper  as  not  guest.  111. 
posting  of  notices  limiting  liability  for  goods,  115. 
purchase  of  liquor  as  making  one  guest,  111. 

reasonable  time  for  removal  of  baggage  after  termination  of  rela- 
tion, lis. 
refusal  to  receive  persons  as  guests,  112. 
restaurant  keeper,  109. 

right  of  access  to  and  control  over  property,  116. 
robbery  as  excuse  for  loss  of  goods,  113. 
room  requested  as  not  required   to  be  furnished,  112. 
sleeping  and  parlor-car  companies  distinguished,  10!»,  200. 
steamship  proprietoi',  109. 
summer  hotel  proprietor,  109. 

temporary  absence  of  guest  as  not  terminating  relation,  118. 
tender  of  charges  as  extinguishing  lien,  117. 
termination  of  relation,  IIS. 
test  whether  party  innkeeper,  109. 
townsman  as  guest,  110. 


356  INDEX. 


{References  are  to  Sections.'] 

transient  character  of  relationship,  110. 
undertaking  to  remove  baggage  to  station,  118. 
visitor  of  gnest  as  not  guest,  111. 
waiver  of  lien,  117. 
what  is  an  inn,  109. 
who  are  innkeepers,  109. 
is  guest,  110,  111. 

INSANE  PERSONS, 
contract,  7. 

INSTRUCTIONS, 

duty  of  bailee,  31,  40. 

INSURANCE, 

payment  by  pledgee,  55. 
policy  as  subject  of  pledge,  46. 
property  bailed  for  work,  91. 

INSURER, 

See  Carriers  of  Goods. 
bailee,  77,  86. 

INVOLUNTARY  DEPOSIT, 
in  general,  26,  27. 

IRRESISTIBLE  FORCE, 

causing  deviation  from  contracted  use,  38. 
loss  or  injury,  40. 


JOINT  AND  SEVERAL  CONTRACTS, 

several  liability  for  negligence  on  joint  hiring,  82. 

JUDGMENT, 

bailor  against  bailee  for  value,  12n. 
subject  of  pledge,  46. 

K 

KNOWLEDGE, 

See  NoTiCK 
bailee  of  character  of  articles  bailed,  31. 
bailor  of  want  of  skill  in  bailee,  90. 
lender  as  to  bailee's  capability  for  care,  40. 


L 

LANDLORD  AND  TENANT, 

putting  prior  tenant's  property  out  in  vacant  lot,  30n. 
relation  distinguished,  6. 

LARCENY, 

excuse  for  loss,  40,  80. 

LEASE, 

subject  of  pledge,  46. 

LEGAL  PURPOSE, 
necessity,  37. 


INDEX.  357 

[References  are  to  Sections."] 
LIEN, 

See  Carkiers  of  Goods. 
assignment,  94. 
bailee  for  worlj,  94. 

coustruetion  of  statute  giving  right  of  sale,  94. 
discliarge  of  pledgee's  lien,  63. 
distinguished  from  pledge,  43. 
finder  ui)on  lost  goods,  33. 
innkeeper,  117. 
livery  stable  Iceeper,  94. 
power  of  bailee  to  subject  property,  9,  17. 
servant  employed  by  bailee,  94. 
subcontractor,  94. 
warehouseman,  101. 

LIGHTERMAN, 

common  carrier,  127. 

LIMITATION  OF  LIABILITY, 

contract  of  carrier,  180-201. 

LIVERY-STABLE  KEEPER, 
bailee,  107. 
common  carrier,  128. 
duty  of  bailor  of  horse  or  carriage,  78. 
failure  to  furnish  wedding  conveyance,  77n. 
lien,  94. 

LIVE   STOCK, 

carriers,  254-264. 

LOANS, 

See  Gratuitous  Bailment  fob  Benefit  of  Bailee, 

LOCATIO-CONDUCTIO  BAILMENTS, 
in  general,  75. 

LOCATIO  REI, 

in  general,  76. 

LODGER. 

distinguished  from  guest,  110. 

LODGING-HOUSE  KEEPER, 

distinguished  from  innkeeper,  109. 

LOG-DRIVING  COMPANY, 

common  carrier,  128. 

LOST  GOODS, 

duties  of  finder,  33. 

duty  of  owner  to  compensate  finder,  33. 

finder,  8,  Sn. 

as  gratuitous  bailee,  20,  27,  33. 
liabilities  of  finder,  33. 
lien  of  finder,  33. 
priority  of  rights  of  findei*,  33. 
property  of  finder  as  absolute  against  world,  33. 


35^  INDEX. 

iBefercnces  are  to  Sections.l 

M 
MAILS, 

See  Post  Office. 
MANDATE, 

in  general,  25. 

object,  24. 

Roman  mandatum,  25. 

MARRIED  WOMEN, 
contract,  7. 

MESSENGER   COMPANY, 
common  carrier,  128. 

MISUSE  OF  PROPERTY, 

See  Use  of  Pbopebty. 
MIXED  BAILMENT, 
definition,  19. 

MONEY, 

sending  loose  money  through  mails,  30n. 
subject  of  bailment,  6n,  23,  23n. 

MORTGAGE, 

foreclosure  by  pledgee,  56. 
subject  of  pledge,  46. 

MOVING  PICTURE  FILMS, 
bailment,  70. 

MUTUAL  AGREEMENT, 

care  required  of  bailee,  30. 
termination  of  relation,  21. 

MUTUUM, 

as  not  bailment,  23. 

N 
NEGLIGENCE, 

agister,  107. 

bailee,  40. 

bailor  preventing  completion  of  work,  92. 

burden  of  proving  thing  hired  not  injured  by  negligence,  80. 

contract  of  private  carrier  limiting  liability,  122. 

contributory  negligence  of  bailee,  82. 

delivery  to  wrong  person  by  bailee's  agent,  21n. 

destruction  of  bailed  property  by  third  person,  12. 

failure  of  bailee  to  use  skill,  30. 

to  watch  gold  bailed,  30n. 
failure  of  bailor  to  give  notice  of  defects,  78. 

to  warn  bailee  of  danger,  32. 
gratuitous  bailee,  30,  31. 
imputation  of  bailee's  negligence  to  bailor  in  action  against  third 

party,  82. 
lack  of  diligence  in  bailee,  80. 

liability  of  bailor  to  third  party  for  negligence  of  bailee,  82. 
presumption  against  negligence  of  bailee,  30. 
question  for  jury,  30n. 
several  liability  on  joint  hiring,  82. 


INDEX.  359 

[References  arc  to  Sections.! 
NOTICE, 

coustructive  notice  to  carrier  of  deliverj^,  137. 

defects  in  article  bailed,  7S. 

goods  in  possession  are  property  of  another,  8. 

necessity  of  special  care,   31. 

to  bailor  as  to  bailee's  character  and  habits,  31. 

to  carrier  of  dangerous  character  of  goods,  139. 

O 
OFFICER  OF  COURT, 
quasi  bailee,  75. 

ON  CONSIDERATION  FOR  MUTUAL  BENEFIT, 

carriage,  121-299. 

custody,  95-120. 

in  general,  75. 

pledges,  in  general,  42-74. 

services,  87-94 

use,  76-SG. 

OPERATION  OF  LAW, 

contract  of  hiring,  75. 

creation  of  pledge,  44. 

delivery  of  property,  8. 

gratuitous  bailment  for  benefit  of  bailor,  26. 

termination  of  pledge  relation,  64,  73n. 

OPERIS  BAILMENTS, 

See  Services. 
OPTION, 

bailment  with  option  of  purchasing,  23. 

OWNERSHIP, 

See  Title. 
in  bailor  as  not  required,  7. 

P 

PARLOR-CAR  COMPANIES, 

See  Carriers  of  Passengers  and  Baggage. 
PARTIES, 

in  general,  7. 

PASSENGERS, 

See  Carriers  of  Passengers  and  Baggage. 

PAWNBROKERS, 

See  Pledges. 
PAYMENT, 

termination  of  lien,  94. 

PERFORMANCE, 

duty  of  bailee,  29. 

failure  of  bailee  to  enter  on  performance  as  agreed,  29. 

PERILS, 

as  not  extended  by  inference,  30n. 

PERSONAL  PROPERTY, 

subject  of  bailment,  2,  0. 

taking  possession  without  present  intent  of  appropriation,  8. 


360  INDEX. 

^References  are  to  Sections.'] 
PLEDGES, 

absolute  security,  45. 

transfer  as  pledge,  43. 
additioual  security  as  not  terminating  pledge,  64. 
administrator's  right  to  pledge  property  of  estate,  47. 
bailee's  right  to  pledge  property,  17. 
bankruptcy  of  pledgor  as  not  terminating  pledge,  64. 
bill  of  lading  as  subject  of  pledge,  46. 
bills  and  notes  as  subject  of  pledge,  46. 
bonds  as  subject  of  pledge,  46. 
book  account  as  subject  of  pledge,  46. 
breach  of  executory  contract  to  pledge,  48. 
care  demanded  of  pledgee,  56. 
chattel  mortgage  as  subject  of  pledge,  46. 

distinguished  from  pledge,  43. 
choses  in  action  as  subject  to  pledge,  46. 
collection  of  negotiable  x^aper  by  pledgee,  56. 
conditional  security,  45. 
construction  of  transaction,  43,  43u. 
conversion  by  pledgee,  58,  73. 
corporate  stock  as  subject  of  pledge,  46. 
coi'poreal  personal  property  as  subject  of  pledge,  46. 
coupon  bonds  as  subject  of  pledge,  46. 
creation  of  pledge  by  operation  of  law,  44. 
death  of  party  as  not  terminating  pledge,  64. 
definition  of  pledge,  42. 
delivery,  bills  of  lading,  53. 

by  agent  of  pledgor,  48. 

constructive  delivery,  49,  50. 

coi"porate  stock,  52. 

In  pledge,  48-53. 

negotiable  instruments,  51. 

of  goods  by  transfer  of  warehouse  receipt,  49,  50,  98. 

quasi-negotiable  instruments,  53. 

to  agent  of  pledgee,  48. 
destruction  of  pledged  chattel  as  terminating  pledge,  64. 
discharge  of  debt  by  conversion  of  pledge,  58. 
duty  of  pledgee  to  pay   insurance  premiums,  55. 
essentials  of  pledge  relation,  44. 
executor's  right  to  pledge  property  of  estate,  47. 
exempt  property  as  subject  of  pledge,  46. 
expenses,  55. 
factor's  property,  104. 

right  to  pledge  principal's  goods,  47. 
fire  insurance  policy  as  subject  of  pledge,  46. 
foreclosure  by  pledgee  of  mortgage,  56. 
future  obligation  as  consideration  for  pledge,  45. 

products  as  subject  of  pledge,  46. 
government  pension  as  not  subject  of  pledge,  46. 
gross  receipts  of  railroad  as  subject  of  pledge,  46. 
illegality  of  debt  secured,  45. 
implied  pledge,  44. 

incorporeal  property  as  subject  of  pledge,  46. 
increase  from  property  pledged,  55,  65. 
indefinite  term  of  security,  45. 
intent  of  parties,  43. 
interest  in  limited  partnership  as  subject  of  pledge,  46. 

of  joint  owner  as  subject  of  pledge,  47n. 


INDEX.  261 

IRcfercnccs  arc  to  Sections.^ 

PLEDGES— Continued. 

of  life  tenant,  as  subject  of  pledge,  47. 
interference  by  pledgor  with  pledgee's  possession,  54. 
judgment  as  subject  of  pledge,  4U. 
lease  as  subject  of  pledge,  46. 
lien  distinguished  from  pleilge,  43. 
lienholder\s  right  to  pledge  encumbered  property,  47. 
life  insurance  policy  as  subject  of  pledge,  40. 
limited  interest  as  subject  of  pledge,  47. 

term  of  security,  4.5. 
loss  by  pledgee  of  right  to  possession,  54. 
marine  insurance  policy  as  subject  of  pledge,  46. 
mortgage  of  realty  as  subject  of  pledge,  4G. 
municipal  vouchers  as  subject  of  pledge,  46. 
necessity  for  delivery,  48. 
new  note  as  not  determining  pledge,  64. 
nonexistent  px'operty   as  not   subject  of  pledge,  46. 
note  of  third  person  as  release  of  collateral,  64n. 
overdue  note  as  consideration  for  pledge,  45n. 

partnership  property  as  not  subject  of  pledge  for  individual  debts,  47nf 
past  obligation  as  consideration  for  pledge,  45. 
payment  of  debt  as  discharge  of  pledgee's  lien,  63. 
pay  of  soldiers  as  not  subject  of  pledge,  46. 
possession  as  essential  to  pledge,  48,  48n,  54. 
profits.  55,  65. 

rails  of  railroad  as  subject  of  pledge,  46n. 
receiver's  right  to  pledge  property  of  corporation,  47. 
redelivery  of  pledge.  65. 
remedies,  election  of  remedies,  63. 

of  compromise  on  negotiable  instrument,  72,  72n. 

of  divisible  pledge,  72. 

of  pledgee  on  default  of  pledgor,  66-72. 

sale  in  equity,  69. 

under  common  law,  68. 
under  special  contract,  71. 
under   statute,  70. 

suit  on  debt,  67. 

where  pledge  is  chose  in  action  or  corporate  stock,  72. 
renewal  of  obligation  as  not  releasing  collateral,  64. 
repledge  of  property  by  pledgee,  47,  57. 
replevin  by  pledgee.  54. 

retention  of  property  by  pledgee  to  secure  different  debt,  45. 
right  of  pledgee  to  assign  pledge,  57. 

to  possession,  54. 

to  use  pledge,  55. 

to  vote  coiTorate  stock,  52. 
right  of  pledgor  to  action  for  conversion,  73. 

to  assign  subject  of  pledge,  60. 

to  dividends  on  corporate  stock,  55. 

to  redeem,   62,   73. 

to  sue  third  parties,  61. 
rights  of  pledgee  of  goods  obtained  by  fraud,  47. 

of  stolen  goods,  47,  47n. 

when  pledge  made  by  agent,  47. 
rights  of  pletlgor  in  default.  73. 

of  purchaser  at  pledgee's  sale,  74. 
rolling  stock  of  railroad  as  subject  of  pledge,  46n. 


3^2 


INDEX. 
[References  arc  to  Sections.'] 


PLEDGES— Continued. 

savings-bank  deposit  as  subject  of  pledge,  46. 

securities  as  subject  of  pledge,  46. 

specific  performance  of  executory  contract  to  pledge,  48, 

substitution  of  pledged  goods  in  warehouse,  64n. 

tender  of  amount  due  by  pledgor,  63. 

termination  of  relation  by  consent  of  parties,  64. 

by  operation  of  law,  64. 

by  pledgor,  63. 
title-deed  as  subject  of  pledge,  46. 
title  necessary  to  pledge  goods,  47. 
trover  by  pledgee,  54. 

by  pledgor,  73. 
voluntary  redeliverj-  of  pledge  as  terminating  relation,  64,  73n. 
waiver  by  pledgor  of  irregularity  in  sale,  73. 

of  statutory  provision  for  notice  and  public  sale,  66. 
waiver  of  conversion  by  pledgee,  58,  5Sn. 
warehouse  receipt  as  subject  of  pledge,  46,  98. 
warranty  of  title  by  pledgor,  59. 
what  debt  may  be  secured,  45. 

may  be  pledged,  46. 

POSSESSION, 

bailee,  9,  23,  27,  38,  79,  89. 

delivery,  88. 

interference  by  pledgor  with  pledgee's  possession,  54, 

loss  of  possession  as  loss  of  lien,  94. 

pledge,  48,  48n,  54. 

POST  OFFICE, 

bailment,  87,  120. 

common  carrier,  128. 

sending  loose  money  through  mails,  30n. 

PRESUMPTIONS, 

See  Cabbiees  of  Goods. 
against  negligence  of  bailee,  30. 
responsibility  assumed  by  bailee,  30n. 
right  to  use  property,  13. 
use  of  thing  is  for  reward,  76. 

PRIVATE  CARRIER, 

See  Cabbiers  of  Goods. 
PRIZE  AGENT, 

quasi  bailee,  75. 

PROPERTY, 

what  property  may  be  bailed,  2,  6,  6n. 

PUBLIC  ENEMY, 

See  Cabbiees   of  Gk)ODs ;   Cabbiebs  of  Live   Stocb:. 
causing  deviation  from  contracted  use,  38. 
injury  to  property  loaned,  38,  40. 

PUBLIC  OFFICER, 

bailee.  106,  107. 
depositary  of  funds,  26. 

PURCHASER, 

See  Bona  Fide  Pubchaser  ;  Sales. 


PURE  BAILMENT, 
in  general,  75. 


INDEX,  363 

[References  arc  to  Scctions.\ 


QUANTUM  MERUIT, 

additional  services,  93. 
imperfect  work,  92,  93. 

QUASI  BAILMENTS  FOR  HIRE, 

in  general,  75. 

QUASI  DEPOSIT, 

in  general,  2G. 

QUESTIONS  FOR  JURY, 

gross  negligence  of  bailee,  30. 

c 

B     . 

RAFTMAN, 

common  carrier,  127. 

RAILROADS, 

common  carriers,  127,  128. 
goods  checked  in  parcel  room,  85. 
gross  receipts  as  subject  of  pledge,  4G. 
receiver  as  common  carrier,  127. 

REAL  CONTRACT, 
bailment,  2. 

REAL  PROPERTY, 

subject  to  bailment,  2,  6. 

RECEIVER, 

of  railroad  as  common  carrier,  127. 

REDELIVERY, 

accessions,  20,  23,  41. 

actual,  2. 

condition  of  goods,  86. 

constructive,  2. 

delivery  to  true  owner  as  excuse  for  non-redelivery,  XL 

discretion  of  stakeholdei",  35. 

failure  to  redeliver  as  conversion,  13,  21,  86. 

for  temporary  purpose,  79. 

Identical  property  and  accessions,  20,  23. 

implied  contract,  2. 

in  general,  20,  35,  41,  86. 

non-redelivery  at  time  si^ecified,  41. 

party  to  whom  to  be  made,  41,  86. 

place,  41. 

pledge,  65. 

receiving  article  as  not  mitigating  damages,  80. 

renewal  of  bailment  by  failure  to  redeliver,  21. 

retention  of  borrowed  article  as  security  for  antecedent  debt,  41. 

seizure  under  process  of  law  as  excuse  for  non-redelivery.  11. 

taking  of  possession  by  true  owner  as  excuse  for  non-redelivery   to 

bailor,  86. 
termination  of  pledge  relation,  64,  73n. 
time,   41,    86. 


3^4  INDEX. 

IReferences  arc  to  Sections.'} 

REDELIVERY— Continued. 

to  true  owner  rather  than  to  lender,  41. 

warehouseman,  20,  23,  102. 

wrongful  redelivery  as  conversion,  13. 

young  of  animals  born  during  term  of  bailment,  41, 

REGISTERED   LETTER, 

care  by  hotel  clerk,  31. 

REMEDIES, 

pledgee  on  default  of  pledgor,  66-72. 

RENEWAL, 

failure  to  redeliver  property,  21. 

REPLEVIN, 

against  bailor,  12n. 

bailor  against  third  party,  82. 

pledgee,  54. 

RES  PERIT  DOMINO, 

application  of  maxim,  92. 

RETURN, 


REVENUE   OFFICER, 
quasi  bailee,  75. 

RIGHT  OF  PROPERTY, 

as  remaining  in  bailor,  10. 

ROBBERY, 

excuse  for  loss,  SO. 

ROMAN  COMMODATUM, 
ROMAN  DEPOSITUM, 
ROMAN  MANDATUM, 


See  Redelivebt. 


See  COMMODATK 

See  Deposit. 
See  Mandate. 

S 
SAFE  DEPOSIT  COMPANY, 
bailee,  105. 

SALES, 

authority  of  carrier  to  sell  goods,  223. 

bailment  for  purpose  of  sale,  23. 

distinguished,   23. 

failure  of  seller  to  see  that  chattels  reach  carrier,  38. 

property  by  bailee,  17. 

purchaser  at  unauthorized  sale  by  bailee,  9. 

from  bailee  as  not  estopped  to  assert  title  against  bailor,  11. 
test  whether  transaction  sale  or  bailment,  23. 
unauthorized  sale  by  bailee,  9. 
waiver  by  pledgor  of  irregularity,  73. 
when  seller  becomes  gratuitous  bailee,  8n, 

SALVOR, 

quasi  bailee,  75. 


INDEX.  365 

IRcferoucn  arc  to  FcctionnA 
SEIZURE, 

See  Carriers  ok  (Joods;   Carriers  of  Live  Stock. 
sherifif  as  bailee,  2G. 
uuder  i)roces.s  of  kiw  ass  excuse  for  iiouredelivery,  11. 

SERVICES, 

hiring,  87-94  . 

kinds  includetl  in  gratuitous  bailments  for  benefit  of  bailor,  24. 

object  of  mandate,  24. 

operis  bailments,  87-94. 

SHERIFF, 

seizing  goods  as  bailee,  26. 

SKILL, 

demanded  of  bailee,  30. 

knowledge  of  bailor  of  want  of  skill  in  bailee,  90. 

SLEEPING-CAR  COMPANY, 

See  Carriers  of  I'assengers  and  Baggage. 

SPECIAL  CONTRACT, 

See  Limitation  of  Liability. 
effect,  14,  18. 

increasing  gratuitous  bailee's  liability,  31. 
recovery  by  bailee  for  work,  92. 

SPECIAL  DEPOSIT, 

authority  of  cashier  to  bind  bank,  34. 
conditions  governing,  34. 
forged  check,  34. 
in  general,  26,  34. 
loss  by  burglars,  34. 

of  diamonds  by  bank.  34n. 
theft  of  gold  by  bank  cashier,  34. 

SPECIFIC  PERFORMANCE, 
bailee's  contract,  21. 
executory  contract  for  loan,  37. 

STAKEHOLDER, 

discretion  as  to  whom  delivery  to  be  made,  35. 
gratuitous  bailee,  26. 

STOPPAGE  IN  TRANSITU, 

See  Carriers  of  Goods;   Cabriebs  of  Live  Stock. 

STORE  KEEPER, 

bailee,  85. 

STREET  CARS, 

common  carriers,  127. 

SUBROGATION, 

bailee,  86. 

SUNDAY  CONTRACT, 

defense  to  conversion,  81. 

SUPERIOR  FORCE, 

excuse  for  loss,  SO,  86. 


S66  INDEX. 

iReferenccs  arc  to  Sections.'] 

T 

TELEGRAPH  AND  TELEPHONE  COMPANIES, 

common  carriers,  128. 

TERMINATION  OF  RELATION, 

See  Carriers  of  Goods. 
change  in  status  of  parties,  21. 
conversion  of  property,  86. 
cleatli  of  loarty,  21. 
destruction  of  property,  21,  86. 
expiration  of  time,  21. 
gratuitous  bailment  for  benefit  of  bailee,  39. 

of  bailor,  35. 
in  genera],  21,  86. 
mutual  agreement,  21. 
pledge,  64. 
warehouseman,  102. 

TITLE, 

bailee,  9,  10,  89. 

bailor,  10,  78. 

failure  of  bailor's  title,  78. 

necessary  to  pledge,  47. 

of  purchaser  from  bailor  as  not  deniable  by  bailee,  11. 

transfer  by  owner  while  property  in  bailee's  possession,  10. 

warranty,  59,  78. 

TITLE  DEED, 

subject  of  pledge,  46. 

TORTS, 

See  Action. 
TRANSFER   COMPANY, 

common  carrier,  127n. 

TRESPASS, 

action  by  bailor  against  third  person,  lOn. 
by  bailee  to  maintain  interest,  89. 

TROVER  AND  CONVERSION, 

action  against  bailee,  13n. 

conversion  as  terminating  relation,  86. 

by  bailee,  13,  81. 

by  pledgee,  58,  73. 
departure  from  purpose  of  bailment  as  conversion,  7. 
destruction  of  property  by  bailee,  13,  81. 
discharge  of  debt  by  conversion  of  pledge,  58. 
driving  horse  beyond  agreed  place  as  conversion,  81. 
evidence  in  suit  against  bailee,  lln. 
excessive  use  of  property  by  bailee,  28. 
failure  to  redeliver  property,  13,  21,  86. 
foundation  of  liability,  81. 
infancy  as  defense  to  conversion,  81. 
intentional  deviation  fi'om  contracted  use,  81. 
keeping  horse  longer  than  agreed  time,  81. 
Sunday  contract  as  not  defense,  81. 
test  of  conversion,  81. 
ti'over  by  bailee  against  third  parties,  12. 


INDEX.  ,57 

IRcfercnccs  arc  to  Sections.} 

TROVER  AND  CONVERSION— Continued. 

to  maintain  interest,  S9, 
trover  by  bailor  against  third  party,  82. 

by  pledgee,  54. 

by  pledgor,  73. 
waiver  of  conversion   by  pledgee,  58.  58n. 
wrongful  redelivery  as  conversion,  13. 

U 
USE  OF  PROPERTY, 

act  of  God  causing  deviation  from  contracted  use   38 

advantage  gained  by  bailee,  28. 

breach  of  contract  by  bailee,  28. 

deviation  from  contracted  use,  38,  81. 

excessive  use,  28. 

exclusive  right  of  bailee,  79. 

expenses  connected  with  use  of  thing  loaned,  38. 

for  purposes  of  compensation,  13. 

good  faith  of  bailee,  79. 

in  general,  28. 

intentional  deviation  from  contracted  use,  81. 

irresistible  force  causing  deviation  from  contracted  use,  38. 

limitations  as  to  time,  place  and  manner,  77. 

measure  of  damages  for  unauthorized  use,  86. 

misuse,  13,  81. 

presumption,  13, 

public  enemy  causing  deviation  from  contracted  use    38 

right  of  bailee,  13,  79. 

strict  construction  of  rule  against  deviation  from  contracted  use   38 

subusers,  82.  ' 

test  whether  use  authorized,  13. 


W 
WAREHOUSEMEN, 

acceiitance  by  warehousemen,  97. 

as  common  carriers,  27. 

assignment  of  receipt,  98. 

bonded  warehouses,  96. 

carrier  maintaining  parcel  room,  S5n. 

commencement  of  liability,  97. 

consent  to  take  charge  of  goods  before  they   reach  warehouse,  97. 

custom  or  usage  to  interpret  receipt,  99. 

definition.  96,  96n. 

delivery  of  goods  in  pledge  by  transfer  of  receipt,  49,  50. 

of  receipt  to  carrier  as  not  delivery  of  goods,  135n. 

to  warehouseman,  97. 

distinguished  from  sale,  23. 
duties,  100,  lOln. 
estoppel  by  receipt,  OS. 
exemption  from  liability,  99. 
form  of  receipt,  98. 
insurable  interest  in  property,  101. 
keeper  of  cotton  yard,  90n. 
liabilities,  100. 

of  cold  storage  warehouseman,  lOOn. 


368  INDEX. 

iReferences  are  to  Sections.'\ 

WAREHOUSEMEN— Continued. 

liability  as  bailee,  87,  96n. 

of  carrier,  131,  165,  188,  231,  238,  239,  242,  252,  253,  293. 
lien,  101. 

memorandum  as  sufficient  receipt,  98. 
negotiability  of  receipt,  98. 
obligation  to  accept  all  goods  offered,  96. 
parol  evidence  to  contradict  or  vary  warehouse  receipt,  99 
pledge  of  personal  goods  by  delivery  of  receipt,  98. 

of  receipt,  46,  53. 
presumption  and  burden  of  proof,  102. 
private  warehouse,  96  . 
public  warehouse,  96. 
receipt,  98. 

as  contract,  99. 

as  subject  of  pledge,  46,  98. 
redelivery,  20,  23,  102. 
rights,  100.  101. 
termination  of  relation,  102. 

warehouse  charges  as  not  included  in  carrier's  lien,  226. 
weighing  tag  as  not  receipt,  98n. 

WHARFINGER, 
bailee,  103. 
common  carrier,  127. 


^^.L/^<C>l  .tr.S 


lie  SOUTH[RN  HU>K)NAl  LIBRARY  f  ACUITY 


AA    000  729  600    7 


